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NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



EXECUTIVE ORDERS 



IN ADDITION 

Voting Rights Act 



PROPOSED RULES 

Environment, Health, and Natural Resources 
Human Resources 




COlfa 

TITUI 

tiomI 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: June 1, 1994 



Volume 9 • Issue 5 • Plages 306 - 348 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S. 1 50B-21 .2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Registers available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh, N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 1 50B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
Registerbefovs the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue tempo 
rary rules. Within 24 hours of submission to OAH, the Codifier o 
Rules must review the agency's written statement of findings of neet 
for the temporary rule pursuant to the provisions in G.S. 150B-21.1. 1 
the Codifier determines that the findings meet the criteria in G.S 
150B-21.1, the rule is entered into the NCAC. If the Codifie 
determines that the findings do not meet the criteria, the rule is returnee 
to the agency. The agency may supplement its findings and resubmi 
the temporary rule for an additional review or the agency may respon 
that it will remain with its initial position. The Codifier, thereafter, wil 
enter the rule into the NCAC. A temporary rule becomes effectiv 
either when the Codifier of Rules enters the rule in the Code or on th 
sixth business day after the agency resubmits the rule without change 
The temporary rule is in effect for the period specified in the rule or 18( 
days, whichever is less. An agency adopting a temporary rule mus 
begin rule-making procedures on the permanent rule at the same tim 
the temporary rule is filed with the Codifier. 

NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a compilatio 
and index of the administrative rules of 25 state agencies and 3 
occupational licensing boards. The NCAC comprises approximatel 
15,000 letter size, single spaced pages of material of which approxi 
mately 35% is changed annually. Compilation and publication of th 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency i 
assigned a separate title which is further broken down by chapter; 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of tw 
dollars and 50 cents ($2.50) for 10 pages or less, plus fiftee 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling i 
excess of 15,000 pages. It is supplemented monthly wit 
replacement pages. A one year subscription to the fu 
publication including supplements can be purchased fo 
seven hundred and fifty dollars ($750.00). Individual vol 
umes may also be purchased with supplement service. Re 
newal subscriptions for supplements to the initial publicatio 
are available. 

Requests for pages of rules or volumes of the NCAC should b 
directed to the Office of Administrative Hearings. 

CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, pag 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to Volum 
1, Issue 1, pages 101 through 201 of the North Carolina Registerissae 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 46-48 



n. IN ADDITION 

Voting Rights Act 



306 



312 



HI. PROPOSED RULES 

Environment, Health, and 
Natural Resources 

Health Services ........... 323 

Human Resources 
Medical Assistance ......... 318 

Mental Health, Developmental 
Disabilities and Substance Abuse 
Services 313 

IV. RRC OBJECTIONS 325 

V. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 328 

Text of Selected Decisions 

92 OSP 1454 333 

93 OSP 0925 342 

VI. CUMULATIVE INDEX ....... 347 



NORTH CAROLINA REGISTER 

Publication Schedule 

(April 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** Earliest 

EflFective 

Date 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


1 1/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling, lime is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures. 
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Revised 03194 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 46 

COMMISSION ON SUBSTANCE ABUSE 

TREATMENT AND PREVENTION 

By the authority vested in me as Governor by the 
Constitution and laws of North Carolina, IT IS 
ORDERED: 

Section 1. Establishment and Membership. 

(a) There is hereby established a Commission on 
Substance Abuse Treatment and Prevention 
("Commission") and an Office of Substance Abuse 
Policy ("Office"). 

(b) The Commission shall consist of twenty 
persons appointed by the Governor. The Governor 
shall designate the Chair of the Commission. All 
Commission members shall serve at the pleasure of 
the Governor. 

(c) Members shall be citizens, government 
officials and representatives of nonprofit organiza- 
tions who have demonstrated interest, involvement, 
or expertise in issues related to prevention, inter- 
vention, and treatment of alcohol and other drug 
abuse. 

(d) For the initial appointment period, ten of the 
members shall serve two-year terms and ten 
members shall serve four-year terms. At the 
expiration of these terms, subsequent member 
appointments shall be for four-year terms. 

(e) The Commission shall meet regularly at the 
call of the Chair. 

Section 2. Functions. 

In fulfilling its responsibilities, the Commission 
shall have the following duties: 

(a) Engender cooperation and collaboration 
among agencies, public and private, 
involved in drug and alcohol abuse pro- 
grams; 

(b) Review the North Carolina laws regard- 
ing substance abuse, including criminal 
and service-delivery statutes, and make 
recommendations concerning needed 
changes; 

(c) Review and recommend mechanisms for 
the coordination of state and local re- 
sources for addressing identified needs; 

(d) Conduct public hearings and advise the 
Governor and other appropriate state 
government departments and agency 
heads of the result and recommendations 
of the Commission; 

(e) Encourage local boards, councils, or 
commissions to mobilize resources to 
address substance abuse problems; 



(f) Encourage local boards, councils, or 
commissions to develop an implementa- 
tion plan to meet identified needs; 

(g) Assist local boards, councils, or commis- 
sions in identifying model prevention, 
intervention, and treatment efforts; 

(h) Encourage program activities that in- 
crease public awareness of substance 
abuse and strategies to decrease the prob- 
lem; and 

(i) Other duties as assigned by the Governor 

and/or Secretary of the Department of 
Administration. 

Section 3. Administration. 

(a) The heads of all State departments and 
agencies shall, to the extent permitted by law, 
provide the Commission and the Office with 
information they require to achieve the purposes of 
this Order. 

(b) The Office shall hire such staff as may be 
necessary to help the Commission accomplish its 
goals, contingent upon the availability of funds. 

(c) Members of the Commission shall serve 
without compensation, but may receive reimburse- 
ment contingent on the availability of funds for 
travel and subsistence expenses in accordance with 
state guidelines and procedures. 

(d) The Commission and the Office shall be 
funded by the Governor's discretionary funds and 
from agencies who have primary responsibility for 
involvement in program issues affecting drugs and 
alcohol. For administrative purposes, the Com- 
mission and the Office shall be housed in the 
Department of Administration. Oversight shall be 
with the Governor's Policy Office. 

Section 4. Reports. 

(a) Every department, agency, institution, and 
organization subject to the Executive Budget Act 
(Chapter 143 of the General Statutes), and a direct 
or indirect recipient of state or federal substance 
abuse funding, shall report specific program and 
fiscal information semi-annually to the Office, in 
a report format approved by that office and the 
Office of State Budget and Management. 

(b) These reports shall, at least, include a report 
of all revenues and expenditures for the period. In 
addition, each report shall contain expenditure 
activity against explicit substance abuse program 
performance measures determined by the depart- 
ment, agency, institution, or organization consis- 
tent with nomenclature and procedures for perfor- 
mance-based budgeting established by the Office of 
State Budget and Management. 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



306 



EXECUTIVE ORDERS 



(c) The Commission and the Office shall report 
their findings and recommendations to the 
Governor. 

Section 5. Rescission. 

Executive Orders 23, 64, and 132 of the Martin 
Administration are hereby rescinded. 

This Executive Order is effective this the 27th 
day of April, 1994. 

EXECUTIVE ORDER NO. 47 

BOARD OF EDUCATION FOR 

THE SCHOOLS FOR THE DEAF 

By the power vested in me as Governor by the 
laws and Constitution of the State of North 
Carolina, IT IS ORDERED: 

Section L Establishment and Purpose. 

There is hereby created the Board of Education 
for the Schools for the Deaf ("Board"). Its 
purpose shall be to provide direction and guidance 
to the North Carolina Schools for the Deaf 
("Schools") and the Department of Human 
Resources ("DHR"). 

Section 2. Membership and Terms. 

The Board shall consist of 12 voting members 
appointed by the Governor as follows: 

(A) Three members shall be parents of 
students that have attended the North 
Carolina Schools for the Deaf, with each 
of the three Schools represented; 

(B) Three members shall be at-large 
representatives; 

(C) Three members shall be educators with 
training in deaf education and awareness 
of current deaf issues and needs; 

(D) Two members of the business community 
who have vocational placement expertise; 
and 

(E) One member who is a past attendee of 
one of the Schools or a member of the 
North Carolina Association of the Deaf. 

(F) In addition, three students, one from each 
of the Schools, shall serve as non-voting 
advisors. 

Three members shall be designated to serve 
initial terms of four years, three to serve initial 
terms of three years, three to serve initial terms of 
two years and three members to serve initial terms 
of one year. After the initial appointees' terms 
have expired, all members shall be appointed for 
a term of four years. No member appointed by 



the Governor shall serve more than two successive 
terms. 

To the extent possible, each member should have 
a background or interest in deaf children and their 
educational needs. Any appointment to fill a 
vacancy on the Board created by the resignation, 
dismissal, death, or disability of a member shall be 
for the balance of the unexpired term. 

The Chair of the Board shall be designated by 
the Secretary of the DHR from among the Board 
members and shall hold this office for a two-year 
term. The Chair may be reappointed for addition- 
al terms. 

Section 3. Meetings and Administration. 

(A) The Board shall meet quarterly and at other 
times at the call of the Chair. A simple majority 
of the Board shall constitute a quorum. An affir- 
mative vote of a majority of the Board shall be 
required to take action. 

(B) Board members shall be reimbursed by 
DHR for subsistence and travel expenses in accor- 
dance with N.C.G.S. 138-5 or 138-6. 

(C) DHR shall provide clerical and other admin- 
istrative assistance to the Board. 

(D) The Chair shall mail a copy of each Board 
meeting agenda to the Chair of the Council for the 
Deaf and Hard of Hearing (set up in N.C.G.S. 
143B-216.31) ten days prior to the meeting. 

Section 4. Duties. 

(A) Evaluate and recommend changes to the 
Secretary of DHR on academic, curriculum, 
facility and budgetary matters in the Schools. 

(B) Work to ensure equal access to a free, 
appropriate public education for all deaf children 
at the Schools. 

(C) Review program development and consisten- 
cy toward the goal of 24-hour quality educational, 
vocational, and residential programs at the 
Schools. 

(D) Formulate and recommend to the Secretary 
of DHR policies, procedures, and quality assur- 
ance methods to achieve that goal. 

(E) Interface with the Council for the Deaf and 
Hard of Hearing on issues of mutual interest. 

This Order is effective immediately and shall 
terminate in four years, unless extended by further 
executive order. 

Done in the Capital City of Raleigh, North 
Carolina, this the 10th day of May, 1994. 



307 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 48 

CONCERNING THE STATE 

COMMISSION ON NATIONAL AND 

COMMUNITY SERVICE 

WHEREAS, the increasing realization of the 
importance of volunteerism and civic participation, 
the growing recognition of community service as 
a means of community and state problem-solving, 
and the revival of national service as an avenue for 
addressing many of the country's unmet social, 
environmental, educational, and public safety 
needs have revealed new options for enhancing the 
quality of life for North Carolinians; and 

WHEREAS, promoting the capability of North 
Carolina's people, communities, and enterprises to 
work collaboratively is vital to the long-term 
prosperity of this state; and 

WHEREAS, building and encouraging communi- 
ty service as an integral part of the formula to our 
growth as a state and as a nation requires coopera- 
tive efforts by the public sector, the private sector, 
the nonprofit sector, and partnerships among these 
sectors; and 

WHEREAS, a State Commission is necessary to 
advise and assist in the development of a compre- 
hensive, statewide service plan for promoting 
volunteer involvement and citizen participation in 
North Carolina; 

NOW, THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
North Carolina, IT IS ORDERED: 

Section L Establishment. 

The State Commission on National and Commu- 
nity Service ("Commission") is hereby established 
to encourage community service and volunteer 
participation as a means of community and state 
problem-solving; to promote and support voluntary 
citizen involvement in government and private 
programs throughout the state; to develop a long- 
term, comprehensive vision and plan of action for 
community service initiatives in North Carolina; 
and to serve as the state's liaison to national and 
state organizations which support its mission. 

Section 2. Membership. 

A. All members of the Commission shall be 
appointed by the Governor. It shall consist of no 
fewer than 15 and no more than 25 members. The 
Governor shall appoint four of the Commission 



members from the Standing Committee on Youth 
Voice. Not more than 50 percent of the Commis- 
sion plus one member may be from the same 
political party. To the extent possible, it shall be 
diverse in race, ethnicity, age, disability, and 
gender. Terms shall be for three years and shall 
be staggered. 

B. The Commission shall include: 

(1) An individual with expertise in the educa- 
tional, training, and developmental needs 
of youth, particularly disadvantaged 
youth. 

(2) An individual with experience in promot- 
ing the involvement of older adults in 
service and volunteerism. 

(3) A representative of community-based 
agencies or community-based organiza- 
tions within the State. 

(4) The Superintendent of the Department of 
Public Instruction, or his designee. 

(5) A representative of local governments in 
the State. 

(6) A representative of local labor organiza- 
tions in the State. 

(7) A representative of business. 

(8) At least four individuals between the ages 
of 12 and 25 who are service providers 
or recipients in a volunteer or service 
program. 

(9) A representative of the Corporation for 
National and Community Service de- 
scribed in Section 122(a) of the United 
States Public Law 103-82 ("PL."), as a 
non-voting, ex officio member. 

C. The Commission may include: 

(1) Members selected from among local 
educators. 

(2) Members selected from among experts in 
the delivery of human, educational, 
environmental, or public safety services 
to communities and persons. 

(3) Representatives of Native American 
tribes. 

(4) Members selected from among out-of- 
school youth or other "at-risk" youth. 

(5) Representatives of entities that receive 
assistance under the Domestic Volunteer 
Service Act of 1973 (42 U.S.C. 4950 et 
seq.). 

D. Not more than 25 percent of the Commission 
members may be employees of state government, 
though additional state agency representatives may 
sit on the Commission as non-voting, ex officio 
members. 

E. Vacancies among the members shall be filled 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



308 



EXECUTIVE ORDERS 



by the Governor to serve for the remainder of the 
unexpired term. 

Section 3. Officers. 

The Officers of the Commission shall be Chair 
and Vice-Chair. All officers shall be elected by 
the voting Commission members from among their 
ranks and shall serve for a term of one year. 
Vacancies in any offices shall be filled with an 
election by the Commission for the remainder of 
the unexpired term. 

a. Chair: It shall be the responsibility of 
the Chair to preside at all meetings of the 
Commission; to appoint all committee 
chairs; to assist all committee chairs in 
the planning of committee activities; to 
supervise all chairs as to the management 
of committee plans; to authorize and 
execute the wishes of the board; and to 
be an ex officio member of all 
committees. 

b. Vice- Chair: The Vice-Chair shall assist 
the Chair, and, in the absence of the 
Chair, perform those duties. The Vice- 
Chair shall accept special assignments 
from the Chair and perform other duties 
as delegated by the Commission. 

Section 4. Effect On Other Executive Orders. 

The Commission is the successor group to the 
Governor's Voluntary Advisory Council, formed 
by Martin Administration Executive Order 1 39 and 
amended by Executive Order 185. That Council 
was disbanded by Executive Order 31, dated 
October 1, 1993. This Executive Order replaces 
and rescinds Executive Order 31. 

Section 5. Standing Committees. 

The Standing Committees shall advise and assist 

the Commission in carrying out its duties and 

responsibilities. Committee chairs shall be 

appointed by the Commission Chair from among 

Commission members, but the committees 5 

members need not be limited to Commission 

members. With the exception of the Standing 

Committee on Youth Voice, the Commission 

Chair, in consultation with the Committee Chairs, 

shall name the committees' members. Standing 

Committees of the Commission shall include: 

a. Youth Voice: The Standing Committee 

on Youth Voice shall consist of 24 

members between the ages of 12 and 25. 

Members shall come from 12 regions of 

the state and be diverse in gender, race 

and ethnicity, geographic location, 



physical ability, and economic and 
educational background. Its 

responsibilities shall include out-reach to 
youth statewide, developing and 
recommending policies and programs to 
the Commission, training other young 
people in the skills necessary to 
strengthen community service programs 
as well as bringing the perspective of 
young people to all Commission 
discussions and decisions. For the initial 
term, members of the Standing 
Committee on Youth Voice will be 
named by peer selection. Following the 
initial term, 12 Regional Councils (to be 
designated by the Commission) will each 
name two representatives to the Standing 
Committee. The Standing Committee on 
Youth Voice shall recommend to the 
Governor four members to serve on the 
Commission. 

b. Volunteer Recognition: The Standing 
Committee on Volunteer Recognition 
shall assist with the implementation of 
Governor's awards relating to exemplary 
volunteer service in the State; work with 
individual communities to develop local 
recognition programs; and explore 
additional opportunities to recognize 
individuals and organizations addressing 
community needs through volunteer 
service. 

c. Evaluation: The Standing Committee on 
Evaluation shall evaluate each program 
funded by the Corporation for National 
and Community Service (described in the 
RL. 103-82) and state organizations 
which support the purpose of the 
Commission to assure their on-going 
quality. 

d. Community Collaboration: The Standing 
Committee on Community Collaboration 
shall promote communication and 
information sharing between state and 
local private and public initiatives to meet 
community needs. 

e. Resource Development: The Standing 
Committee on Resource Development 
shall develop and implement strategies to 
secure local, state, and federal resources 
to reinforce, expand, and initiate quality 
community programs across the state. 

f. Training: The Standing Committee on 
Training will develop and implement 
strategies for training and technical 



309 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



EXECUTIVE ORDERS 



assistance to community service 
programs, potential grant applicants and 
State Commission-funded programs, as 
well as work towards building service 
program partnerships statewide, 
g. Service Learning: The Standing 

Committee on Service Learning will act 
as a liaison between the State 
Commission, private and public 
institutions of higher education and the 
Department of Public Instruction to shape 
the service learning state plan and 
promote service learning in community- 
based and school-based programs and 
partnerships across the state. 

Section 6. Meetings. 

The Commission shall meet at least quarterly. 
Failure to attend at least 75 percent of called 
meetings in any calendar year shall result in 
removal from the Commission. A quorum shall 
consist of a simple majority of voting members. 

Section 7. Duties. 

The Commission shall, in the performance of its 
tasks and functions: 

a. Ensure that its funding decisions meet all 
federal and state statutory requirements. 

b. Recommend innovative, creative, 
statewide service programs to increase 
volunteer participation in all age groups 
and community-based problem-solving 
among diverse participants. 

c. Develop and implement a centralized, 
organized system of obtaining 
information and technical support 
concerning volunteerism and community 
service recruitment, projects, training 
methods, materials, and activities 
throughout North Carolina. Share such 
information and support upon request. 

d. Promote strong interagency collaboration 
as an avenue for maximizing resources 
and provide that model on the State level. 

e. Provide public recognition and support of 
individual volunteer efforts and 
successful or promising private sector 
initiatives and public/private partnerships 
of which address community needs. 

f. Stimulate increased community awareness 
of the impact of volunteer services in 
North Carolina. 

g. Utilize local, state, and federal resources 
to reinforce, expand, and initiate quality 
service programs. 



h. Assist the Governor's Office of Citizen 

Affairs in the planning and implementa- 
tion of volunteer programs. 

i. Serve as the state's liaison and voice to 

appropriate national and state organiza- 
tions which support its mission. 

j. Prepare a national three-year service plan 

for the State which follows state and 
federal guidelines. 

k. Prepare the financial assistance applica- 

tions of the State under Sections 1 1 7B 
and 1301 of the PL. 103-82. 

1. Assist in the preparation of the applica- 

tion of the North Carolina Department of 
Public Instruction for assistance under 
Section 113 of the PL. 103-82. 

m. Prepare the State's application under 
Section 130 for the approval of service 
positions such as the national service 
educational award described in Subtitle D 
of the PL. 103-82. 

n. Make technical assistance available to 

enable applicants for assistance under 
Section 121 to plan and implement ser- 
vice programs; and to apply for assis- 
tance under the federal service laws such 
as the PL. 103-82. 

o. Assist in the provision of health care and 

child care benefits under Section 140 to 
participants in national service programs 
that receive assistance under Section 121 
of the PL. 103-82. 

p. Develop a state system for the recruit- 

ment and placement of participants in 
programs that receive assistance under 
the national service laws and disseminate 
information concerning national service 
programs that receive such assistance or 
approved national service positions. 

q. Administer the State's grant program in 

support of national service programs 
(using assistance provided to the State 
under Section 121 of the PL. 103-82) 
including selection, oversight, and evalu- 
ation of grant recipients. 

r. Coordinate its functions (including re- 

cruitment, public awareness, and training 
activities) with any division of the federal 
ACTION program or the Corporation for 
National and Community Services out- 
lined in the PL. 103-82. 

Section 8. Administration and Expenses. 

The Governor's Office of Citizen Affairs shall 
provide necessary administrative and staff support 



9:5 



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June 1, 1994 



310 



EXECUTIVE ORDERS 



services to the Commission. The Commission is 
authorized to accept funds and in-kind services 
from other state and federal entities, as authorized 
by the North Carolina Executive Budget Act. No 
per diem allowance shall be paid to members of 
the Commission. Members of the Commission 
and staff may receive necessary travel and subsis- 
tence expenses in accordance with state law. 
These expenses shall be paid from federal funds 
where possible. If federal funds are not available, 
these expenses may be paid only if the Governor's 
Office has sufficient funds. 

This Order is effective immediately. 

Done in Raleigh, North Carolina, this the 12th 
day of May, 1994. 



311 9:5 NORTH CAROLINA REGISTER June 1, 1994 



IN ADDITION 



Ihis Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication 



U.S. Department of Justice 

Civil Rights Division 

DLP:MAP:MJP:emr Voting Section 

DJ 166-012-3 P.O. Box 66128 

94-0856 Washington, DC. 20035-6128 

April 26, 1994 

Robert C. Cogswell, Jr., Esq. 

City Attorney 

P. O. Box 1513 

Fayetteville, North Carolina 28302-1513 

Dear Mr. Cogswell: 

This refers to the procedures for conducting the May 3, 1994, special bond election for the City of 
Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 
5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on 
February 28, 1994. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 (28 
C.F.R. 51.41). 



Sincerely, 

Deval L. Patrick 

Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



9:5 NORTH CAROLINA REGISTER June 1, 1994 312 



PROPOSED RULES 



TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

ISotice is hereby given in accordance with G.S. 
150B-21.2that the Commission for Mental Health, 
Developmental Disabilities and Substance Abuse 
Services intends to amend rules cited as 10 NCAC 
18F .0312 - .0313, .0318 - .0319; and adopt rules 
cited as 10 NCAC 18F .0321 - .0322, with chang- 
es from the proposed text noticed in the Register . 
Volume 9, Issue 1, pages 13-23. 

1 he proposed effective date of this action is 
September 1, 1994. 

IVeason for Proposed Action: To provide public 
notice of substantive changes made at the May 10, 
1994 public hearing regarding conducting and 
reporting DWI assessments. 

Ksomment Procedures: Written comments may be 
submitted to Charlotte Tucker, Division of Mental 
Health, Developmental Disabilities and Substance 
Abuse Services, Albemarle Building, 325 N. 
Salisbury Street, Raleigh, N.C. 27603. These 
comments will be accepted from June 1 , 1994 
through July 1, 1994. 

rLditor's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

CHAPTER 18 - MENTAL HEALTH: 
OTHER PROGRAMS 

SUBCHAPTER 18F - PROGRAM SUPPORT 
STANDARDS 

SECTION .0300 - SUBSTANCE ABUSE 
ASSESSMENTS FOR INDIVIDUALS 

CHARGED WITH OR CONVICTED OF 
DRIVING WHILE IMPALED (DWI) 

.0312 PURPOSE AND SCOPE 

Th e purpoo e of th e rules of thio S e ction is to 
ootnbliah s p e cific proo e dur e e for oonduoting and 
reporting DWI substance abuse aflsoosmonto. Suoh 
asBeflBm e ntfl may b e sought e ith e r voluntarily on a 



pro trial basi s or by order of the preoiding judg e 
These rules apply to any facility lioonood by the 
State as an alcoholi s m and substance abuse treat - 



ment facility or a facility which provides aubotancc 
abuse services and is excluded from licensure 



under G.S. — 122C 22 which wishes to perform 
DWI substance abuse assessments. 

(a) The purpose of the rules of this Section is to 
establish specific procedures for conducting and 
reporting DWI substance abuse assessments- 
Alcohol and Drug Education Traffic Schools 



(ADETS). and treatment of DWI offenders. 
(b) Assessments may be sought either voluntari- 



ly on a pre-trial basis or by order of the presiding 
judge. 

(c) These Rules app ly to any facility that con- 
ducts DWI assessments. 

(d) In order for a facility to perform DWI 
assessments, it shall: 

(1) be licensed by the State as an alcohol 
ism and substance abuse treatment 
facility: or 

(2) provide substance abuse services, and 
be excluded from licensure under G.S 
122C-22. 

Statutory Authority G.S. 20-1 79(e)(6) and (m). 

.0313 DEFINITIONS 

For the purpose of the rules in this Section, the 
following terms shall have the meanings indicated: 



w- 



' Alcohol and Drug — Education Traffic 



School (ADETS)" means a prevention 



and intervention service which provides 



an educational program primarily for fir s t 



offender s — convicted — e£ — driving — while 



impaired. — Thi s s ervice i s designed to 
reduce the recidivism rate for the offen s e 



in 



of driving while impaired. 

"American Society of Addiction Medicine 



(ASAM) Placement Criteria" means the 
Patient Placement Criteria for the Treat- 



ment of Psychoactive Substance Abuse 



Disorders, copyright 1991 by the Nation- 
al Association of Addiction Treatment 



Providers and the American Society of 
Addiction Medicine. For these Rules. 



the ASAM Level L Outpatient Treat- 



ment, has been divided into I.A.. Short- 



0) 



term and I.B.. Longer-term Outpatient 

Treatment. 

"Certified ADETS Instructor" means an 

individual who is certified by the Divi- 



sion in accordance with 10 NCAC 18M 
.0906 Instructor Certification, contained 



313 



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PROPOSED RULES 



in Division publication. Standards for 
Area Programs and Their Contract Agen- 
cies, APSM 35-1, and available at the 
current printing cost. 

(3) £3) "Clinical Interview" means the face- 
to-face interview with a substance abuse 
professional intended to gather informa- 
tion on the client, including, but not 
limited to the following: demographics, 
medical history, past and present driving 
offense record, alcohol concentration of 
current offense, social and family history, 
substance abuse history, vocational back- 
ground and mental status. 

(4) "Continuing Care" means an out patient 
service designed to maximize the recov- 
ery experience begun in more intensive 
treatment: out patient or inpatient. As a 
continuation of the treatment experience 
this service is expected to begin immedi- 
ately upon the client's discharge from 
intensive treatment: 

(a) When the continuing care follows an 
inpatient treatment experience, it shall: 

(i) include a minimum of 20 contact 
hours of service scheduled no less 
than weekly, during a 30-day period: 
and 

(ii) continue for a minimum period of 90 
days. 

(b) The services shall be provided accord- 
ing to a written continuing care plan 
which shall: 

(i) address the needs of the client: and 
(ii) utilize individual, family and group 

counseling as required to meet the 

needs of the client. 

(5) "Division" means the same as defined in 
G.S. 122C-3: and is hereafter referred to 
as DMH/DD/SAS. 

0) £6) "DMH Form 508 (DWI Services 
Certificate of Completion)" means the 
four-part form which is used in docu- 
menting the offenders completion of the 
DWI substance abuse assessment and 
treatment or ADETS and compliance or 
non compliance of ADETS as appropri 

ftt©. 

CD "Driving record" means a person's com- 
plete North Carolina driving history, as 
maintained by the North Carolina 
Driver's License Division's history file. 

(8) "DSM" means the current edition of the 
Diagnostic and Statistical Manual of 
Mental Disorders of the American 



Psychiatric Association. 
(4) £9) "DWI" means impaired driving as 

described in G.S. 20-138.1. 
(10) "DWI categories of service" mean: 
(a) "Alcohol and Drug Education Traffic 
School (ADETS)" means an a pproved 
curriculum which shall: 
£i} include K) to J_3 contact hours in a 

classroom setting: 
(ii) be provided by area programs or their 
designated agencies with certified 
ADETS instructors: and 



(iii) be designed for persons: 
(A) who have only 



one 



DWI 



conviction (lifetime): 

(B) whose assessment did not identify 
a "Substance Abuse Handicap": 
and 

(C) whose alcohol concentration was 
.14 or less. 

(b) "Day treatment" means a structured, 
outpatient service. It may also be 
called intensive outpatient treatment, as 
defined in K) NCAC 14N .0900 and 
a pplicable portions of K) NCAC 14K 
.0300. which include ASAM Level II 
treatment criteria. 

(c) "Inpatient residential treatment 
services" means an array of services 
which may include detoxification and 
rehabilitation in a structured 
environment, as set forth in K> NCAC 
14Q .0300. and contained in Licensure 
Rules as defined in Item (14) of this 
Rule. Such services will correspond 
with ASAM Level III and Level IV 
treatment criteria. 

(d) "Longer-term outpatient treatment" 
means a structured program meeting the 
ASAM definition of Level L Outpatient 
Treatment, and requiring a minimum of 
40 contact hours scheduled to maintain 
the client in active treatment for a 
minimum period of 60 days, providing 
counseling and learning experiences 
which include the "Minimal Subject 
Content. " as defined in this Rule. The 
facility must operate in compliance with 
Licensure Rules. 10 NCAC 14N .0700 
and applicable portions of K) NCAC 
14K .0300. 

(e) "Short-term outpatient treatment" means 
a structured program meeting the broad 
definition of "ASAM Level L 
Outpatient Treatment." and requiring a 



9:5 



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June 1, 1994 



314 



PROPOSED RULES 



I 



minimum of 20 contact hours over a 

period of at least 30 days, including 

counseling and didactic experiences 

which include the minimal subject 

content. Facilities which are a pproved 

to provide this shall operate in 

compliance with Licensure Rules 

contained in 10 NCAC 14N .0700 and 

a pplicable portions of K) NCAC 14K 

.0300. 

(S) OJi "DWI Substance Abuse 

Assessment" means a service provided to 

persons charged with or convicted of 

DWI to determine the presence or 

absence of a substance abuse handicap. 

The assessment involves a clinical 

interview as well as the use of a 

standardized test. 

{€) (12) "Facility" means the term as 

defined in G.S. 122C-3(14). 

(13) "Licensure rules" mean the rules 
contained in 10 NCAC 14K through 14Q 
of the North Carolina Administrative 
Code and published in Division publica- 
tion. Licensure Rules for MH/DD/SA 
Facilities, APSM 40-2. 

(14) "Minimal subject content" means the 
following list of subjects which shall be 
addressed in the educational portion of 
any treatment program serving DWI 
offenders: 

(a) Effects of Alcohol and Drugs on the 
Body/Brain; 

(b) The Nature of Denial; 

(c) Disease Concept of Chemical Depen- 
dency; 

(d) Progression of Disease and Recovery 
(Jellinek Chart); 

(e) Chemical Dependency and the Family; 

(f) Introduction to Self- Help Groups/ 12 
Step Recovery Programs; 

(g) Relapse Prevention and Strategies for 
Recovery; and 

(h) Safe Roads Act Penalties. 

(15) "Special service plan" means a plan for 
persons who exhibit unusual circumstanc- 
es, such as severe hearing impairment, 
other physical disabilities, concurrent 
psychiatric illness, language and commu- 
nication problems, intractable problems 
of distance, transportation and schedul- 
ing, and chronic offenders with multiple 
unsuccessful treatment experiences. 

(9) (16) "Standardized Test" means an 
instrument a written test approved by the 



Department of Human Resources, with 
documented reliability and validity, 
which serves to assist the assessment 
agency or individual in determining if the 
client has a substance abuse handicap. A 
current listing of the approved standard- 
ized tests may be obtained by writing the 
DWI/Criminal Justice Branch, Division 
of Mental Health, Mental Retardation and 



Substance Abu s e Services MH/DD/SAS, 



m 



325 N. Salisbury Street, Raleigh. NC 

27603 33644. 

(17) "Substance Abuse Handicap" means 

a degree of dysfunction directly related to 

the recurring use/abuse of an impairing 

substance. 



Statutory Authority G.S. 20-138.1; 20-179; 122C- 
3. 

.0318 RESPONSIBILnTES OF TREATMENT 
OR ADETS PROVIDERS 

(a) An individual shall be provided with docu- 
mentation that outlines their obligation, resulting 
from the assessment recommendations. A written 



plan shall be developed by the facility providing 
the recommended treatment or ADETS to insure 
that the individual understand s the requirements of 
the particular treatment or education service in 
which they arc enrolled. 

(b) Individual s shall not be denied the opportuni - 
ty to complete the service recommended by the 
assessing agency. An individual who does not 
begin services within nine months of the date of 
the initial assessment shall be re-evaluated utilizing 
the results of the initial assessment. 

(c) The facility providing the recommended 
treatment or ADETS shall have the individual 
execute the appropriate release of information 
giving that facility permission to report the client's 
progress to the^ Divi s ion of Mental Health, Mental 
Retardation, and Substance Abuse Services, the 
Divi s ion of Motor Vehicles, the Court and the 



Department of Correction. 
LO DMH/DD/SAS; 
(2) Division of Motor Vehicles; 
£3} Court; 

(4) Department of Correction: and 

(5) assessing and treatment agencies, as 
a ppropriate. 

(d) Identification of a substance abuse handicap 
shall be considered indicative of the need for 
treatment^ when diagnostic criteria a pply . In such 
instances, educationally-oriented and/or support 
group services shall only be provided as a supple- 



315 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



PROPOSED RULES 



ment to a more extensive treatment plan. 

(e) If treatment is recommended and required 
per the court's judgement, such treatment shall be 
provided by a facility licensed by the state State 
for the provision of such services. In addition, a 
client record shall be opened en for each client 
receiving treatment. 



Statutory Authority G.S. 
143B-147. 



20-1 79(m); 122C-26; 



.0319 REPORTING REQUIREMENTS 

(a) The assessment portion of the DMH Form 
508 shall be completed en for each client who 
receives a DWI substance abuse assessment. An 
initial supply of this form may be obtained from 
the DWI/Criminal Justice Branch of the Divi s ion 
ef DMH/DD/SAS Mental — Health, — Mental 
Retardation, and Sub s tance Abuse Services , 325 
N. Salisbury Street, Raleigh, N.C. 27603 37644. 

(b) The assessment portion of DMH Form 508 
shall be signed by a certified alcoholism, drug 
abu s e or substance abuse counselor. The date of 
expiration of that professional's certification shall 
be indicated on the client's Certificate of 
Completion and no assessment shall be signed after 
the expiration date . 

(c) The facility providing the recommended 
treatment or education shall have the client sign 
the a ppropriate release of information, and 
progress reports shall be filed with the court or the 
Department of Correction at intervals not to 
exceed six months. If treatment, education or both 



i s recommended, all four 



pages 



of the DMH Form 



508 shall bo forwarded to the faoility providing the 
recommended treatment or education. 

(d) In the event that — ee — s ubstance — abu s e 
handicap — is — identified — and — ne — treatment — ef 
education — recommendations — afe — made, — the 
assessing agency s hall forward the copie s of DMH 
Form 50 8 as specified in part (g) of thi s Rule. 
Upon completion of the recommended treatment or 
ADETS service, the agency shall: 

(1) forward the top page of the completed 
DMH Form 508 to the DWI/Criminal 
Justice Branch. DMH/DD/SAS: and 

(2) retain, for a period of at least five 
years, the appropriate page of the form, 
and distribute the remaining pages to 
the offender and the court as specified 
on the bottom of the form. 

(e) In the event that an assessment or treatment 
agency ceases to provide DWI-related services, the 
agency shall notify, in writing, the DWI Criminal 
Justice Branch to assure that all DMH Form 508s 



and other related documents specified in G.S. 20- 
179(m) are properly processed. The facility 
providing the recommended treatment or education 
shall have the client s ign the appropriate release of 
information, and progre s s reports s hall be filed 
with the court or the Department of Correction at 
interval s not to exceed six months. 

(f) If treatment and ADETS have been court 
order e d, and the individual does not successfully 
complete the requirements of the ADETS, a copy 
of the top s heet of DMH Form 50 8 showing non 
compliance — s hall — be — forwarded — te — the 
DWI/Criminal Ju s tice Branch, Division of Mental 
Health, Mental Retardation, and Substance Abuse 
Service s . — All four pages of the DMH Form 5 08 
s hall be retained by the faoility providing the 
recommended treatment s ervice until such s ervice 
arc completed. By February 15 of each year, all 
assessing agencies shall forward, in writing, to the 
DWI/Criminal Justice Branch of the Division the 
following information on the previous year's 
activities, which shall include but need not be 
limited to the number of: 

(1) pre-trial assessments conducted; 

(2) post trial assessments conducted: 

(3) individuals referred to ADETS: and 

(4) substance abuse handicaps identified 
and the recommended levels of 
treatment. 

fg) Upon completion of the recommended 

treatment or education service, the top page of the 
completed DMH Form 50 8 shall be forwarded to 
the DWI/Criminal Justice Branch, the Divi s ion of 
Mental Health, Mental Retardation , and Substance 



Abuse Services. — The 



s hall al s o retain the 



agency 

appropriate page of the form and distribute the 
remaining page s to the offender and the court aa 
s pecified on the bottom of the form -: — The agency 
providing the servicc( s ) shall retain its copy of this 
form for a period of not loss than five years. 

(h) In the event that an assessment or treatment 
agency ceases providing DWI related services, it 
shall be the re s pon s ibility of that agency to notify 
the DWI Criminal Justice Branch in writing to 
assure that all DMH Form 50 8 forms and other 
related documents s pecified in G.S. 20 179(m) are 
properly processed. 

Statutory Authority G.S. 20-1 79(m). 



.0321 PLACEMENT CRITERIA FOR 
ASSESSED DWI CLIENTS 

(a) Clients who have undergone a 



DWI 



substance abuse assessment shall be placed in the 
a ppropriate DWI category of service. 



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June 1, 1994 



316 



PROPOSED RULES 



(b) Placement of clients in a specific category 
shall be based on the assessment outcome, 
diagnosis, and level of care determined to be 
necessary for treatment. 

(c) In addition to the terms defined in Rule 
.0313(10) of this Section for each of the following 
progressive categories, determination for 
placement shall be based on the criteria specified 
in this Paragraph. 

£1} ADETS: 

(A) the assessment did not identify a 
"Substance Abuse Handicap; 

(B) the person has no previous DWI 
conviction; and 

(C) the person had an alcohol 
concentration of 0.14% or less at the 
time of arrest. 

(2) Short-term Outpatient Treatment: 

(A) the assessment outcome suggests 
diagnosis of psychoactive substance 
abuse only; 

(B) the client does not fit all aspects of 
the diagnosis, but, under certain 
circumstances, the clinical picture 
provides reason to conclude that a 
treatment setting would be more 
a ppropriate than ADETS. Some of 
these circumstances include, but are 
not limited to: 

alcohol concentration is .15 or 
higher; 



ill 

m 
m 

(hi 



refusal of breath test at time of 

arrest: 

problems relating to family 

history; 

other problems which seem to be 

a contributing factor to DWI 

behavior; such as grief, loss, etc.: 

and 
(v) the client meets the criteria for 

Level I of the ASAM Placement 

Criteria. 
(C) the person had an alcohol 
concentration of 0.14% or less at the 
time of arrest. 



01 



(M 



Longer-term Outpatient Treatment: 
when a client meets minimal 
conditions for the diagnosis of 
"psychoactive substance dependence; " 
and 

(B) the criteria for Level I of the ASAM 
placement is met. 
(4) Day Treatment: 

(A) the assessment confirms a diagnosis of 
psychoactive substance dependence. 



moderate or severe: 



(B) the ASAM placement criteria for 
Level II Outpatient Treatment is met: 

(C) program: 

{i} includes an educational component 
which addresses at least the 
minimal subject content, as 
defined in Rule .0313 of this 
Section; 

(ii) offers additional continuing care- 
urging voluntary participation of 
the client and significant others: 
and 

(iii) requires a minimum of 90 contact 
hours and participation of the 
client over a period of at least 90 
days, for any client referred under 
G.S. 20-179(m) or (e)(6). 

(D) program may be preceded by a brief 
inpatient stay for detoxification or 
stabilization of a medical or 
psychiatric condition. 

(5) Inpatient Residential Treatment 
Services: 

(A) the level of care requires that the 
client meets the same diagnostic 
criteria as Intensive Outpatient 
(dependence is moderate or severe): 

(B) outpatient treatment of other 
associated problems has not been 
successful; 

(C) the client meets the placement criteria 
for Levels III or IV (Inpatient) of the 
ASAM Placement Criteria with regard 
to the following six "patient problems 
areas" as set forth in ASAM Patient 
Placement Criteria. Adult Crosswalk; 
and the client exhibits: 

(i) withdrawal risk; 

(ii) need for medical monitoring; 

(iii) emotional and behavioral 

problems requiring a structured 

setting; 
(iv) high resistance to treatment; 
(v) inability to abstain; and 
(vi) lives in a negative and destructive 

environment. 

(D) in order for the client to meet the 
required 90-day time frame for 
treatment, the client, upon discharge, 
shall enroll in an approved continuing 
care or other outpatient program. 

(6) Special Service Plan: 

(A) documented need for a special 
program to correspond with the 



317 



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June 1, 1994 



PROPOSED RULES 



recommendations of the DWI 
assessment, which shall include 
documentation: 
(i) of the special circumstances which 
prove that the client is unable to 
participate in or benefit from the 
recommended basic structured 
program: and 
(ii) that the participation would be 
detrimental to the client. 
(B) Some of the conditions under which a 
Special Service Plan is implemented 
may include, but need not be limited 
to. the following: 
(i) severe hearing impairment: 
(ii) other physical disabilities: 
(iii) concurrent psychiatric illness: 
(iv) language and communication 

problems: 
£v) intractable problems of distance, 
transportation and scheduling: and 
(vi) chronic offenders with multiple 
unsuccessful treatment 
experiences. 

Statutory Authority G.S. 20- 179(e)(6) and (m). 

.0322 DOCUMENTATIONREQUIREMENTS 

(a) When conducting the assessment for an 
individual charged with, or convicted of, offenses 
related to Driving While Impaired (DWI), DMH 
Form 508 shall be completed. 

(b) If treatment is recommended, client record 
documentation shall include, but not be limited to, 
the following minimum requirements for each 
"DWI category of service" defined in Rule .0313 
of this Section, except for the ADETS category: 

(1) all items specified in the "clinical 
interview. " as defined in Rule .0313 of 
this Section: 

(2) results of the administration of an 
approved "standardized test." as defined 
in Rule .0313 of this Section: 

(3) release of information as set forth in 
Rules .0315 and .0318 of this Section: 
and 

(4) release of information covering any 
collateral contacts, and documentation 
of the collateral information. 

(c) Substance abuse treatment records shall 
comply with the requirements in 10 NCAC 14K 
■0315(a) through fgL I1L fkL and in K) NCAC 
14K .0317. 

Statutory Authority G.S. 20- 179(e) (6) and (m). 



****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Medical 
Assistance intends to amend rules cited as 10 
NCAC SOB .0313, .0407 and adopt SOB .0314. 

1 he proposed effective date of this action is 
September 1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on July 1, 1994 at the North Carolina Divi- 
sion of Medical Assistance, 1985 Umstead Drive, 
Room 132, Raleigh, NC 27603. 

Keason for Proposed Action: Amendment neces- 
sary to apply the same methodology and restric- 
tions on amount of guardianship fees as applied by 
Social Security. 

Ksomment Procedures: Written comments con- 
cerning these Rules must be submitted by July 1 , 
1994, to: Division of Medical Assistance, 1985 
Umstead Drive, Raleigh, NC 27603 ATTN: Clar- 
ence Ervin, APA Coordinator. Oral comments 
may be presented at the hearing. In addition, a 
fiscal impact statement is available upon written 
request from the same address. 

CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER 50B - ELIGIBILITY 
DETERMINATION 

SECTION .0300 - CONDITIONS 
FOR ELIGIBILITY 

.0313 INCOME 

(a) Income from the following sources shall be 
counted in the calculation of financial eligibility: 
(1) Unearned. 

(A) RSDI, 

(B) Veteran's Administration, 

(C) Railroad Retirement, 

(D) Pensions or retirement benefits, 

(E) Workmen's Compensation, 

(F) Unemployment Compensation, 

(G) Support Payments, 
(H) Contributions, 

(I) Dividends or interest from stocks, 
bonds, and other investments, 



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318 



PROPOSED RULES 



(J) 
(K) 

(L) 



(M) 
(N) 
(O) 
(P) 

(Q) 
(R) 

(S) 
(T) 
(U) 



(V) 



(W) 



(X) 
(Y) 

(Z) 



(2) 



(A) 

(B) 
(C) 

(D) 
(E) 
(F) 



(G) 



(H) 

(I) 



(3) 



Trust fund income, 
Private disability or employment 
compensation, 

That portion of educational loans, 
grants, and scholarships for mainte- 
nance, 

Work release, 
Lump sum payments, 
Military allotments, 
Brown Lung Benefits, 
Black Lung Benefits, 
Trade Adjustment benefits, 
SSI when the client is in long term 
care, 

VA Aid and Attendance when the 
client is in long term care, 
Foster Care Board payments in excess 
of state maximum rates for M-AF 
clients who serve as foster parents, 
Income allocated from an institutional- 
ized spouse to the client who is the 
community spouse as stated in 42 
U.S.C. 1396r-5(d), 
Income allowed from an institutional- 
ized spouse to the client who is a 
dependent family member as stated in 
42 U.S.C. 1396r-5(d), 
Sheltered Workshop Income, 
Loans if repayment of a loan and not 
counted in reserve, 

Income deemed to Family and 
Children's clients. 
Earned Income. 
Income from wages, salaries, and 
commissions, 
Farm Income, 

Small business income including 
self-employment, 
Rental income, 

Income from roomers and boarders, 
Earned income of a child client who 
is a part-time student and a full-time 
employee, 

Supplemental payments in excess of 
state maximum rates for Foster Care 
Board payments paid by the county to 
Family and Children's clients who 
serve as foster parents, 
Earned income tax credits for the 
Aged, Blind or Disabled only, 
VA Aid and Attendance paid to a 
budget unit member who provides the 
aid and attendance. 
Additional sources of income not listed 
in (1) or (2) of this Rule will be 



considered available unless specifically 
excluded by (b) of this Rule, or by 
regulation or law. 
(b) Income from the following sources shall not 

be counted in the calculation of financial 

eligibility: 

(1) Earned income of a child who is a 
part-time student but is not a full-time 
employee; 

(2) Earned income of a child who is a 
full-time student; 

(3) Incentive payments and training 
allowances made to WIN training 
participants; 

(4) Payments for supportive services or 
reimbursement of out-of-pocket 
expenses made to volunteers serving as 
VISTA volunteers, foster grandparents, 
senior health aides, senior companions, 
Service Corps of Retired Executives, 
Active Corps of Executives, Retired 
Senior Volunteer Programs, Action 
Cooperative Volunteer Program, 
University Year for Action Program, 
and other programs under Titles I, II, 
and III of Public Law 93-113; 

(5) Foster Care Board payments equal to or 
below the state maximum rates for 
Family and Children's clients who 
serve as foster parents; 

(6) Earnings of M-AABD clients who are 
participating in ADAP (Adult 
Developmental Activity Program) 
training programs for a specified 
period; 

(7) Income that is unpredictable, i.e., 
unplanned and arising only from time to 
time. Examples include occasional 
yard work, sporadic babysitting, etc.; 

(8) Relocation payments; 

(9) Value of the coupon allotment under 
the Food Stamp Program; 

(10) Food (vegetables, dairy products, and 
meat) grown by or given to a member 
of the household. If home grown 
produce is sold, count as earned 
income; 

(11) Benefits received from the Nutrition 
Program for the Elderly; 

(12) Food Assistance under the Child 
Nutrition Act and National School 
Lunch Act; 

(13) Assistance provided in cash or in kind 
under any governmental, civic, or 
charitable organization whose purpose 



319 



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PROPOSED RULES 



is to provide social services or 
vocational rehabilitation. This includes 
V.R. incentive payments for training, 
education and allowance for 
dependents, grants for tuition, chore 
services under Title XX of the Social 
Security Act, VA aid and attendance or 
aid to the home bound if the individual 
is in a private living arrangement; 

(14) Loans or grants such as the GI Bill, 
civic, honorary and fraternal club 
scholarships, loans, or scholarships 
granted from private donations to the 
college, etc., except for any portion 
used or designated for maintenance; 

(15) Loans, grants, or scholarships to 
undergraduates for educational purposes 
made or insured under any program 
administered by the U.S. Department of 
Education; 

(16) Benefits received under Title VII of the 
Older Americans Act of 1965; 

(17) Payments received under the 
Experimental Housing Allowance 
Program (EHAP); 

(18) In-kind shelter and utility contributions 
paid directly to the supplier. For 
Family and Children's cases, shelter, 
utilities, or household furnishings made 
available to the client at no cost; 

(19) Food/clothing contributions in Family 
and Children's cases (except for food 
allowance for persons temporarily 
absent in medical facilities up to 12 
months); 

(20) Income of a child under 21 in the 
budget unit who is participating in 
JTPA and is receiving as a child; 

(21) Housing Improvement Grants approved 
by the N.C. Commission of Indian 
Affairs or funds distributed per capital 
or held in trust for Indian tribe 
members under PL. 92-254, PL. 
93-134 or PL. 94-540; 

(22) Payments to Indian tribe members as 
permitted under PL. 94-114; 

(23) Payments made by Medicare to a home 
renal dialysis patient as medical 
benefits; 

(24) SSI except for individuals in long term 
care; 

(25) HUD Section 8 benefits when paid 
directly to the supplier or jointly to the 
supplier and client; 

(26) Benefits received by a client who is a 



representative payee for another 
individual who is incompetent or 
incapable of handling his affairs. Such 
benefits must be accounted for separate 
from the payee's own income and 
resources; 

(27) Special one time payments such as 
energy, weatherization assistance, or 
disaster assistance that is not designated 
as medical; 

(28) The value of the U.S. Department of 
Agriculture donated foods (surplus 
commodities); 

(29) Payments under the Alaska Native 
Claims Settlement Act, Public Law 
92-203; 

(30) Any payment received under Title II of 
the Uniform Relocation Assistance and 
Real Property Acquisition Policies Act 
of 1970; 

(31) HUD Community Development Block 
Grant funds received to finance the 
renovation of a privately owned 
residence; 

(32) Reimbursement for transportation 
expenses incurred as a result of 
participation in the Community Work 
Experience Program or for use of 
client's own vehicle to obtain medical 
care or treatment; 

(33) Adoption assistance; 

(34) Incentive payments made to a client 
participating in a vocational 
rehabilitation program; 

(35) Title XX funds received to pay for 
services rendered by another individual 
or agency; 

(36) Any amount received as a refund of 
taxes paid; 

(37) Any Cost of Living Allowance (COLA) 
increase in the RSDI benefit for a 
disabled widow or widower resulting 
from the 1983 Actuarial Reduction 
Formula (ARF) which caused the loss 
of SSI effective January, 1984, for an 
M-AA, M-AB, or M-AD client: 

(A) Who received a disabled widow or 
widower's benefit and SSI 
simultaneously in 1983 as identified 
by the Social Security Administration, 
and 

(B) Who lost SSI because of the 
elimination of the ARF, and 

(C) Who is not now eligible for SSI, and 

(D) Who was between 50 and 59 years of 



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320 



PROPOSED RULES 



age in 1983, and 

(E) Who applied for Medicaid no later 
than June 30, 1988, and 

(F) Who is classified as Categorically 
Needy; 

(38) Any Cost of Living Allowance (COLA) 
increase in the RSDI benefit for a client 
or his financially responsible spouse or 
parent(s), who: 

(A) Is classified as Categorically Needy 
for the M-AA, M-AB, or M-AD 
programs, and 

(B) Lost SSI or State/County Special 
Assistance (S/C-SA) for any reason, 
and 

(C) Would currently be eligible for SSI or 
S/C-SA if all COLA's since he was 
last eligible for and received RSDI 
and SSI or S/C-SA concurrently were 
disregarded; 

(39) The RSDI benefit for a client who: 

(A) Is a disabled widow or widower or 
surviving divorced spouse, and 

(B) Received SSI for the month prior to 
the month he began receiving RSDI, 
and 

(C) Would continue to be eligible for SSI 
if the RSDI benefit were not counted, 
and 

(D) Is not entitled to a Medicare Part A. 

(40) Earnings of aged, blind and disabled 
individuals who have a plan for achiev- 
ing self-support (PASS) that is ap- 
proved by the Social Security Adminis- 
tration. 

(c) Income levels for purpo s e purposes of 
establishing financial eligibility are those amount 
amounts approved by the N.C. General Assembly 
and stated in the Appropriations Act for categori- 
cally needy and medically needy classifications, 
except for the following: 

(1) The income level shall be reduced by 
one-third when an aged, blind or dis- 
abled individual lives in the household 
of another person and does not pay his 
proportionate share of household ex- 
penses. The one-third reduction shall 
not apply to children under nineteen 
years of age who live in the home of 
their parents; 

(2) An individual living in a long term care 
facility or other medical institution shall 
be allowed a thirty dollar ($30.00) 
income level, and a couple in the same 
room in a long term care facility shall 



be allowed a sixty dollar ($60.00) as 
income level a deduction for personal 
needs described under Rule .0314 
(Personal Needs Allowance) of this 
Subchapter . 

(3) Individuals who arc in a long term cam 

facility for a temporary period of 3ix 
months or less s hall be allowed the 
income level provided by — statute in 
addition to the thirty dollar ($30.00) 
level . 



Authority G.S. 108A-25(b); 108A-61; 42 C.ER. 
435.135; 42 C.ER. 435.731; 42 C.ER. 435.732; 
42 C.ER. 435.733; 42 C.F.R. 435.811; 42 C.ER. 
435.812; 42 CER. 435.831; 42 CER. 435.832; 
42 CER. 435.1007; 42 U.S.C 1383c(b); 42 
U.S.C 1383c(d); 45 CER. 233.20; P.L. 99-272; 
Section 12202; Alexander v. Flaherty Consent 
Order filed February 14, 1992. 

.0314 PERSONAL NEEDS 
ALLOWANCE 

An individual living in a long term care facility 
or other medical institution shall be allowed an 
amount for personal needs. The personal needs 
allowance is the sum of the following, but not to 
exceed the income maintenance level provided by 
statute for a single individual (or a couple, if in the 
same LTC room) in a private living arrangement. 

in " 

la) 



Standard Personal Needs Amount: 
A thirty dollar ($30.00) deduction for 
one individual; or 

£b] Sixty dollar ($60.00) deduction for a 
married couple in the same long term 
care facility; or 

(cl Ninety dollar ($90.00) deduction for a 
veteran (or the surviving spouse of a 
veteran) with no living dependents 
whose pension has been reduced to 
ninety dollars ($90.00) by the Veterans 
Administration; 
(2) Individuals With Greater Need: 

(a) Work Incentive Allowance: Individuals 
who reside in an ICF or ICF-MR facili- 
tv_ and who are regularly engaged in 
work activities as part of their develop- 
mental plan for which they receive 
otherwise countable wages shall be 
allowed an incentive deduction in the 
following amounts: 



321 



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PROPOSED RULES 



Monthly Net Wages 

$ 1 to $100 
$101 to $200 
$201 to $300 
$301 and greater 



Incentive Allowance 

Up to $50 
$80 
$130 

$212 



(b) Guardianship fees: Individuals, for 

whom a guardian of the estate has been 

named by the court, shall be allowed. 

for payment of guardianship fees. 

whichever of the following amounts ]s 

less: 

£i) 10% of total monthly income from all 

sources, both earned and unearned: or 

(ii) Twenty-five dollars ($25.00) per 

month. 

Authority G.S. 108A-25(b); 42 C.ER. 435.135; 42 
C.F.R. 435.731; 42 C.F.R. 435.732; 42 C.F.R. 
435.733; 42 C.F.R. 435.831; 42 U.S.C. 1383c(b); 
42 U.S.C. 1383c(d). 

SECTION .0400 - BUDGETING 
PRINCIPALS 

.0407 PATIENT LIABILITY 

(a) Patient liability shall apply to clients who 
live in facilities for skilled nursing, intermediate 
nursing, intermediate nursing for mental retarda- 
tion or other medical institutions. 

(b) The client's patient liability for cost of care 
shall be computed as a monthly amount after 
deducting the following from his total income: 

(1) An amount for his personal needs as 
established under Rule ^0344 .0314 of 
this Subchapter; 

(2) Income given to the community spouse 
to provide him a total monthly income 
from all sources, equal to the "mini- 
mum monthly maintenance needs allow- 
ance" as defined in 42 U.S.C. 
1396r-5(d)(3)£AM); 

(3) Income given to family members 
described in 42 U.S.C. 1396r-5(d)(l), 
to provide each, from all sources of 
income, a total monthly income equal 
to! 

(A) One-third one third of the amount 
established under 42 U.S.C. 
1396r-5(d)(3)(A)(i);or 

(B) Where there is no community spouse, 
an amount for the number of 
dependents, based on the income level 
for the corresponding budget unit 



number, as a pproved by the NC 
General Assembly and stated in the 
A ppropriations Act for categorically 
and medically needy classifications: 

(4) The income maintenance level provided 
by statute for a single individual in a 
private living arrangement with no 
spouse or dependents at home, for 
whom the physician of record has 
provided a written statement that the 
required treatment is such that the 
patient is expected to return home 
within six months, shall be allowed: 

(5) {4) Ad amount for unmet medical needs 
as determined under Paragraph (f) of 
this Rule. 

(c) Patient liability shall apply to institutional 
charges incurred from the date of admission or the 
first day of the month as appropriate and shall not 
be prorated by days if the client lives in more than 
one institution during the month. 

(d) The county department of social services 
shall notify the client, the institution and the state 
of the amount of the monthly liability and any 
changes or adjustments. 

(e) When the patient liability as calculated in 
Paragraph (b) of this Rule exceeds the Medicaid 
reimbursement rate for the institution for a 31 day 
month: 

(1) The patient liability shall be the 
institution's Medicaid reimbursement 
rate for a 31 day month; 

(2) The client shall be placed on a 
deductible determined in accordance 
with Federal regulations and Rules 
.0404, .0405 and .0406 of this 
Subchapter. 

(f) The amount deducted from income for unmet 
medical needs shall be determined as follows: 

(1) Unmet medical needs shall be the costs 
of: 

(A) Medical care covered by the program 
but that exceeds limits on coverage of 
that care and that is not subject to 
payment by a third party; 

(B) Medical care recognized under State 
and Federal tax law that is not 
covered by the program and that is 
not subject to payment by a third 
party; and 

(C) Medicare and other health insurance 
premiums, deductibles, or coinsurance 
charges that are not subject to 
payment by a third party. 

(2) The amount of unmet medical needs 



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322 



PROPOSED RULES 



deducted from the patient's monthly 
income shall be limited to monthly 
charges for Medicare and other health 
insurance premiums. 

(3) The actual amount of incurred costs 
which are the patient's responsibility 
shall be deducted when reported from 
the patient's liability for one or more 
months. 

(4) Incurred costs shall be reported by the 
end of the six month Medicaid 
certification period following the 
certification period in which they were 
incurred. 

Authority G.S. 108A-54; 42 C.ER. 435.732; 42 
C.ER. 435.733; 42 C.F.R. 435.831; 42 C.F.R. 
435.832; 42 U.S.C 1396r-5. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that EHNR - Commission for Health 
Services intends to amend rule cited as 15A NCAC 
18A .2508; and adopt rule cited as 15 A NCAC 
18A .2539. 

1 he proposed effective date of this action is 
October 1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on July 21, 1994 at the Archdale Building, 
Ground Floor Hearing Room, 512 North Salisbury 
Street, Raleigh, N C. 

MXeason for Proposed Action: 
15A NCAC 18A .2508 - NC General Statute 130A- 
282 allows for pools constructed prior to May 
1993 not to comply with certain design and con- 
struction standards; however, if these pools are 
remodeled they must meet all current design and 
construction requirements. The proposed change 
in the definition of "remodeled" would allow for 
changes to be made in pool designs in order to 
eliminate the potential for suction hazards created 
by single drains without having to comply with all 
other design at construction requirements. 
This change will greatly reduce the cost of compli- 
ance and should encourage owners of wading 
pools with single drains to make the necessary 



changes needed to eliminate the potential suction 

hazards. 

ISA NCAC 18A .2539 - This Rule is necessary to 

reduce the risk of suction injury at public wading 

pools. 

Comment Procedures: All persons interested in 
these matters are invited to attend the public 
hearing. Written comments may be presented at 
the public hearing or submitted to Grady L. 
Balentine, Department of Justice, PO Box 629, 
Raleigh, NC 27602-0629. All written comments 
must be received by August 1 , 1994. Persons who 
wish to speak at the hearing should contact Mr. 
Balentine at (919) 733-4618. Persons who call in 
advance of the hearing will be given priority on 
the speaker 's list. Oral presentation lengths may 
be limited depending on the number of people that 
wish to speak at the public hearing. Only persons 
who have made comments at a public hearing or 
who have submitted written comments will be 
allowed to speak at the Commission meeting. 
Comments made at the Commission meeting must 
either clarify previous comments or proposed 
changes from staff pursuant to comments made 
during the public hearing process. 

IT IS VERY IMPORTANT THAT ALL 
INTERESTED AND POTENTIALLY AFFECTED 
PERSONS, GROUPS, BUSINESSES, 
ASSOCIATIONS, INSTITUTIONS OR AGENCIES 
MAKE THEIR VIEWS AND OPINIONS KNOWN 
TO THE COMMISSION FOR HEALTH SERVICES 
THROUGH THE PUBLIC HEARING AND 
COMMENT PROCESS, WHETHER THEY 
SUPPORT OR OPPOSE ANY OR ALL 
PROVISIONS OF THE PROPOSED RULES. THE 
COMMISSION MAY MAKE CHANGES TO THE 
RULES AT THE COMMISSION MEETING IF THE 
CHANGES COMPLY WITH G.S. 150B-21.2(f). 

Auditor's Note: These Rules were filed as 
temporary rules effective June 1, 1994 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 18 - ENVmONMENTAL 
HEALTH 

SUBCHAPTER 18 A - SANITATION 

SECTION .2500 - PUBLIC SWIMMING 
POOLS 



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PROPOSED RULES 



.2508 DEFINITIONS 

The following definitions shall apply throughout 
this Section: 

(1) Equipment replacement means 
replacement of individual components of 
the hydraulic and disinfection systems 
such as pumps, filters, and automatic 
chemical feeders. 

(2) Public swimming pool means public 
swimming pool as defined in G.S. 
130A-280. Public swimming pools are 
divided into three types: 

(a) Swimming pools are all public 
swimming pools except spas and 
wading pools. 

(b) Spas are special facilities designed for 
recreational and therapeutic use which 
are not drained, cleaned, or refilled 
after each individual use. Spas may 
include, but not be limited to, units 
designed for hydrojet circulation, hot 
water, cold water mineral bath, air 
induction bubbles, or any combination 
thereof. Common terminology for spas 
includes "therapeutic pool", 
"hydrotherapy pool", "whirlpool", "hot 
spa", and "hot tub". 

(c) Wading pools are small, shallow 
swimming pools not more than 18 
inches deep designed for use by 
children. 

(3) Remodeled means renovations requiring 
disruption of major portions of the pool 
shell or deck, changes in the pool profile, 
or redesign of the pool hydraulic system. 
Remodeled does not include equipment 
replacement or repair or addition of 
outlets for the purpose of reducing 
suction hazards . 

(4) Repair means repair of existing 
equipment, replastering or repainting of 
the pool interior, replacement of tiles or 
coping and similar maintenance activities. 



(b) Operators of all public wading pools shall 
inspect pools daily to ensure the drain covers are 
in good condition and securely attached. 

Statutory Authority G.S. 130A-282. 



Statutory Authority G. S. 130A-282. 

.2539 SUCTION HAZARD REDUCTION 

(a) At all public wading pools which use a 
single main drain for circulation of water, signs 
shall be posted stating: "WARNING Jo prevent 
serious injury do not allow children in wading pool 
if drain cover is broken or missing". Signs shall 
be in letters at least one-half inch in height and 
shall be posted where they are visible to people 
entering the wading pool. 



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June 1, 1994 



324 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



HUMAN RESOURCES 

Children's Services 

10 NCAC 41 F .0704 - Physical Facility 
Agency Revised Rule 

Facility Services 

10 NCAC 3L .0906 - Compliance with Laws 
Rule Withdrawn by Agency 

Medical Assistance 

10 NCAC 261 .0304 - Hearing Procedures 

Agency Revised Rule 

INSURANCE 

Financial Evaluation Division 

11 NCAC 11C .0308 - Foreign HMO: Successful Operation 

Agency Revised Rule 
11 NCAC 11F .0207 - Specific Standards for Morbidity, Interest and Mortality 

Agency Revised Rule 
11 NCAC 1 IF .0208 - Reserves for Waiver of Premium 

Agency Revised Rule 

LABOR 
OSHA 



RRC Objection 04/21/94 
Obj. Removed 04/21/94 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



04/21/94 



03/17/94 
03/17/94 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



13 NCAC 7 A .0707 - \hriances and Other Relief Under Section 95-1 32(a) RRC Objection 04/21/94 

Agency Revised Rule Obj. Removed 04/21/94 

13 NCAC 7 A .0708 - \hriances and Other Relief Under Section 95-1 32(b) RRC Objection 04/21/94 

Agency Revised Rule Obj. Removed 04/21/94 

13 NCAC 7 A .0709 - Modification: Revocation: and Renewal of Rules or Orders RRC Objection 04/21/94 

Agency Revised Rule Obj. Removed 04/21/94 

13 NCAC 7 A .0710 - Action on Applications RRC Objection 04/21/94 

Agency Revised Rule Obj. Removed 04/21/94 

13 NCAC 7 A .0711 - Request for Hearings on Applications RRC Objection 04/21/94 

Agency Revised Rule Obj. Removed 04/21/94 



325 



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RRC OBJECTIONS 



LICENSING BOARDS AND COMMISSIONS 
Certified Public Accountant Examiners 

21 NCAC 8A . 0105 - Purposes and Responsibilities 

Agency Repealed Rule 
21 NCAC 8F .0103 - Filing of Examination Applications and Fees 

Agency Revised Rule 
21 NCAC 8F .0112 - Candidate's Request to Sit in Another Jurisdiction 

Agency Revised Rule 
21 NCAC 8G .0409 - Computation of CPE Credits 

Agency Revised Rule 
21 NCAC 8J .0008 - Firm Registration 

Agency Revised Rule 
21 NCAC 8N .0103 - CPAs Outside North Carolina 

Agency Withdrew Rule 

Dental Examiners 

21 NCAC 161 .0003 - License Void Upon Failure to Renew 

Agency Revised Rule 
21 NCAC 16R .0002 - Approved Courses and Sponsors 

Agency Revised Rule 

Medical Examiners 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 

03/17/94 



RRC Objection 04/21/94 

Obj. Removed 04/21/94 

RRC Objection 04/21/94 

Obj. Removed 04/21/94 



21 NCAC 32B .0402 - Fee 

Agency Revised Rule 
21 NCAC 32B .0706 - Fee 

Agency Revised Rule 

Real Estate Appraisal Board 

21 NCAC 57 A .0210 - Temporary Practice 

Agency Revised Rule 
21 NCAC 57B .0207 - Administration 

Agency Revised Rule 
21 NCAC 57B .0306 - Instructor Requirements 

Agency Revised Rule 
21 NCAC 57B .0603 - Criteria For Course Approval 

Agency Revised Rule 
21 NCAC 57C .0104 - Petition to Reopen Proceeding 

Agency Revised Rule 

PUBLIC EDUCATION 

Elementary and Secondary Education 

16 NCAC 6C .0307 - Certificate Renewal 

Agency Revised Rule 
16 NCAC 6E .0202 - Interscholastic Athletics 



RRC Objection 03/17/94 

Obj. Removed 03/17/94 

RRC Objection 03/17/94 

Obj. Removed 03/17/94 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



RRC Objection 04/21/94 
RRC Objection 04/21/94 
RRC Objection 04/21/94 



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326 



RRC OBJECTIONS 



REVENUE 

Individual Income Tax Division 

17 NCAC 6B .0612 - Tax Credit for Qualified Business Investments 
Agency Revised Rule 

STATE TREASURER 

Collateralization of Deposits 

20 NCAC 7 . 0202 - Amount of Collateral Required to be Pledged 

Agency Revised Rule 
20 NCAC 7 .0603 - Acceleration of Maturities 

Agency Revised Rule 



RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 



RRC Objection 03/17/94 

Obj. Removed 03/17/94 

RRC Objection 03/17/94 

Obj. Removed 03/17/94 



327 



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June 1, 1994 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



A1J 



DVTEOF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

North Carolina Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Rayvon Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bernard Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 

Edvraid Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 

Robert Kovalaske, Nick Pikoulas, Joseph Marshburn, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Raleigh Limits. Inc. 

COMMERCE 

Savings Institutions Division 

James E. Byers, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 

Crime Victims Compensation Commission 

James Hugh Baynes v. Crime Victims Compensation Commission 
Ross T. Bond v. Victims Compensation Commission 
James A. Canady v. Crime Victims Compensation Commission 
Virginia Roof v. Department of Crime Control & Public Safety 
Percy Clark v. Crime Victims Compensation Commission 
Barbara Henderson v. Crime Victims Compensation Commission 
Shirley Handsome v. Crime Victims Compensation Commission 
Georgeann \bung v. Crime Victims Compensation Commission 
Lawrence L. Tyson v. Crime Victims Compensation Commission 
Mary E. Haskins v. Crime Victims Compensation Commission 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, Divs. of Coastal Mgmt & Environmental Mgmt 
Gary E. Montalbine v. Division of Coastal Management 



94 DOA 0242 



West 



93 COM 1622 Chess 



04/13/94 



93 ABC 0719 


Gray 


03/02/94 


93 ABC 0793 


Nesnow 


04/11/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1057 


Bee ton 


04/21/94 


93 ABC 1485 


Mann 


03/11/94 



03/01/94 



94 DOC 0252 Morrison 03/21/94 



93 CPS 0801 


West 


03/28/94 


93 CPS 1104 


West 


04/21/94 


93 CPS 1108 


Gray 


03/28/94 


93 CPS 1347 


Nesnow 


03/24/94 


94 CPS 0127 


Reilly 


04/19/94 


94 CPS 0259 


Morrison 


04/07/94 


94 CPS 0286 


Gray 


04/28/94 


94 CPS 0292 


Reilly 


04/18/94 


94 CPS 0368 


Gray 


04/26/94 


94 CPS 1406 


Gray 


03/17/94 



89 EHR 1378"* Gray 04/07/94 

90 EHR 0017* Gray 04/07/94 
93 EHR 1792 Nesnow 03/21/94 



9:2 NCR 114 



* Consolidated Cases. 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



328 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Environmental Health 



Jane C. CMallcy, Melvin L. Cartwright v. EHNR & District Hlth Dept 

Pasquotank-Perquimans-Camden-Chowan 
Environment, Health, & Natural Res. v. Clark Harris & Jessie Lee Harris 
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 



91 EHR0838 


Bee ton 


04/06/94 


93 EHR 0924 


Bee ton 


03/03/94 


94 EHR 0200 


Nesnow 


04/27/94 



Environmental Management 

Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 



93 EHR 0531 
93 EHR 1030 



Chess 03/21/94 

Becton 03/21/94 



Marine Fisheries 

Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 93 EHR 0394 Gray 04/1 1/94 

Solid Waste Management 



Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 93 EHR 0951 

Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 93 EHR 1045 

Herbert Jenkins, Jr., Lindwood Earl Tripp, Willie Warren Tripp, Mary 
Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 
Division, and East Carolina Environmental, Inc., Addington Environmental, 
Inc., ct al. 



Gray 03/28/94 

Morrison 04/06/94 



9:3 NCR 214 



HUMAN RESOURCES 



Division of Child Development 

Judith Fridley v. Div. of Child Development/Abuse/Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0168 


Nesnow 


03/23/94 



Facility Services 



Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. Cert of 
Need Section, Div of Facility Svcs, DHR, and Wilmington Perfusion 
Corp. and Howard F. Marks, Jr., M.D. 

Presbyterian-Orthopaedic Hospital v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Division of Medical Assistance 

JR., by and through her agent & Personal Rep., Hank Neal v. DHR 

David Yott v. Department of Human Resources 

Division of Medical Assistance v. Catawba Cry Dept. of Social Services 



93 DHR. 0746 


Morgan 


04/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 1381 


Gray 


04/15/94 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1778 


West 


03/04/94 



Division of Social Services 

Evelyn Moore v. Department of Human Resources 

Child Support Enforcement Section 

William HeckBtall v. Department of Human Resources 
Bryan Jeffrey Cole v. Department of Human Resources 
Dexter L. Chambers v. Department of Human Resources 
Ronald E. Johnson v. Department of Human Resources 
Roger Moore v. Department of Human Resources 
AJvin Lee Martin v. Department of Human Resources 
Robert Young v. Department of Human Resources 
Antonio Townscnd v. Department of Human Resources 
Troy E. Pinkney v. Department of Human Resources 
Anthony A. Macon v. Department of Human Resources 
Walter Lee Corbett v. Department of Human Resources 
Joe Louis Mayo v. Department of Human Resources 



94 DHR 0293 



Reilly 



04/15/94 



93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1091 


Becton 


03/30/94 


93 CSE 1 124 


West 


03/28/94 


93 CSE 1125 


Becton 


03/30/94 


93 CSE 1127 


Becton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1139 


Becton 


03/30/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1149 


Gray 


04/26/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1161 


West 


04/19/94 



329 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



CONTESTED CASE DECISIONS 



AGENCY 



Nash Andrew NewBome v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Eric G. Sykes v. Department of Human Resources 

Willie C. Hollis v. Department of Human Resources 

Bernadett Cook v. Department of Human Resources 

Dennis W. Nolan v. Department of Human Resources 

Robert Calvin Connor v. Department of Human Resources 

James D. Williams v. Department of Human Resources 

Vaughn D. Pearsall v. Department of Human Resources 

Sidney Ray Tuggle Jr. v. Department of Human Resources 

George Aaron Collins v. Department of Human Resources 

Samuel L. Dodd v. Department of Human Resources 

William A. Sellers v. Department of Human Resources 

Kenneth W Cooper v. Department of Human Resources 

Steven A. Elmquist v. Department of Human Resources 

Mark E. Rogers v. Department of Human Resources 

Daniel Thomas Hefele v. Department of Human Resources 

Gilbert J. Gutierrez v. Department of Human Resources 

Alton D. Johnson v. Department of Human Resources 

Chester Sanders v. Department of Human Resources 

Rodney Guyton v. Department of Human Resources 

Donald W. Clark v. Department of Human Resources 

William E. David Jr. v. Department of Human Resources 

Timothy D. Evans v. Department of Human Resources 

Billy Edward Smith v. Department of Human Resources 

Allen D. Terrell v. Department of Human Resources 

Ray C. Moses v. Department of Human Resources 

Bart Ransom v. Department of Human Resources 

William H. Simpson Sr. v. Department of Human Resources 

James D. McClure Jr. v. Department of Human Resources 

Douglas L. Cherrix v. Department of Human Resources 

Dwayne Lament Thompson v. Department of Human Resources 

Horace Lee Bass v. Department of Human Resources 

Michael Wilder v. Department of Human Resources 

James A. Cephas v. Department of Human Resources 

Wade A. Burgess v. Department of Human Resources 

Billy Dale Beaney v. Department of Human Resources 

James E. Wiggins Sr. v. Department of Human Resources 

Timothy J. Jones v. Department of Human Resources 

Randall E. Hunter v. Department of Human Resources 

Alton E. Simpson Jr. v. Department of Human Resources 

John William Vance Jr. v. Department of Human Resources 

Royston D. Blandford 111 v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93CSE 1170 


Mann 


03/17/94 


93CSE 1171 


Gray 


04/26/94 


93CSE 1172 


Morrison 


04/20/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1181 


Bee ton 


04/20/94 


93 CSE 1191 


Becton 


05/09/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1267 


Becton 


04/20/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1460 


Reilly 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1500 


Becton 


05/13/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1520 


Morrison 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1591 


Becton 


04/20/94 


93 CSE 1597 


Becton 


05/13/94 


94 CSE 0095 


West 


04/19/94 



JUSTICE 



Alarm Systems Licensing Board 

Alarm Systems Licensing Board v. George P. Baker 

Private Protective Services Board 

Larry C. Hopkins v. Private Protective Services Board 

Training and Standards Division 



93 DOJ 0457 



93 DOJ 1618 



Nesnow 



03/10/94 



Morrison 03/07/94 



Curtiss Lance Potest v. Criminal Justice Ed. & Training Stds. Comm. 93 DOJ 0231 

Willie David Moore v. Criminal Justice Ed. & Training Stds. Comm. 93 DOJ 1071 

Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 93 DOJ 1409 

Gregory Blake Manning v. Criminal Justice Ed. & Training Stds. Comm. 94 DOJ 0048 



Chess 03/28/94 

Nesnow 04/11/94 

Gray 03/03/94 

Gray 03/29/94 



9:3 NCR 218 



MORTUARY SCIENCE 

Mortuary Science v. Perry J. Brown, & Brown's Funeral Directors 



93 BMS 0532 



Chess 



03/28/94 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



330 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



DATE OF 
ALJ DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



PUBLIC EDUCATION 

Nancy Watson v. Board of Education 

Janet L. Wilcox v. Carteret County Board of Education 

STATE HEALTH BENEFITS OFFICE 

Linda C. Campbell v. Teachers & St Emp Major Medical Plan 
Timothy L. Coggins v. Teachera' & St Emp Comp Major Med Plan 

STATE PERSONNEL 

Agricultural and Technical State University 

Linda D. Williams v. Agricultural and Technical State University 
Juanita D. Murphy v. Agricultural and Technical State University 
Thomas M. Simpson v. Agricultural and Technical State University 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North Carolina Central University 

Ha-Vilyah Ha-She'B v. NCCU 

Department of Commerce 

Ruth Daniel-ferry v. Department of Commerce 

Department of Correction 

Leland K. Williams v. Department of Correction 
Bert Esworthy v. Department of Correction 
Alfred B. Hunt v. Department of Correction 
Adrian E. Graham v. Intensive Probation/Parole 

Department of Crime Control and Public Safety 

Fred L. Kearney v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 

Employment Security Commission of North Carolina 

Rejeanne B. LeFrancois v. Employment Security Commission of N.C. 

Department of Environment, Health, and Natural Resources 

Division of Marine Fisheries 

William D. Nicely v. Environment, Health, & Natural Resources 

Department of Human Resources 

Inez Latta v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 

David R. Rodgers v. Jimmy Summerville, Stonewall Jackson School 

Durham County Department of Social Services 
Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of Social Svcs 

Menial Health/Mental Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 



93 EDC 0234 
93 EDC 0451 



93 INS 0410 
93 INS 0929 



93 OSP 1097 



93 OSP 0875 



93 OSP 0725 



91 OSP 0401 

92 OSP 1463 



93 OSP 1069 



Chess 
Mann 



Bee ton 
Morrison 



02/28/94 
02/21/94 



04/22/94 
03/04/94 



9:2 NCR 108 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 



Reilly 



Becton 



Chess 



04/29/94 



04/13/94 



03/04/94 



91 OSP 1287 


Chess 


02/22/94 


93 OSP 0711 


Chess 


04/21/94 


94 OSP 0243 


Reilly 


04/20/94 


94 OSP 0261 


Morrison 


04/26/94 



West 
Reilly 



West 



03/18/94 
03/21/94 



04/08/94 



92 OSP 1454 Becton 05/04/94 



93 OSP 0830 Becton 

93 OSP 1762 Gray 

93 OSP 0047 Gray 

94 OSP 0087 Chess 



93 OSP 0728 Chess 



93 OSP 1604 Becton 



03/28/94 
03/03/94 
05/06/94 
03/16/94 



04/11/94 



03/18/94 



9:4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



9:5 NCR 333 



331 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



CONTESTED CASE DECISIONS 



AGENCY 

Wake County Mental Health, Developmental Disabilities, and Substance 

Julia Morgan Brannon v. Wake County MD/DD/SAS 

Department of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportation 
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportation 
Betsy Johnston Powell v. Department of Transportation 
Clyde Lem Hairston v. Department of Transportation 

University of North Carolina at Chapel Hill 

Eric W. Browning v. UNC-Chapel Hill 

STATE TREASURER 

Retirement Systems Division 

John C. Russell v. Bd. /Trustees/Teachers* & State Employees' Ret. SyB. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. SyBtem 
Elizabeth M. Dudley v. Bd. /Trustees/Teachers' & State Employees' 
Retirement System 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


Abuse Services 






94OSP0214 


Reilly 


04/14/94 



PUBLISHED DECISION 
REGISTER CITATION 



93 OSP 0297* 1 
93 OSP 0500* 1 
93 OSP 0550 
93 OSP 0944 



93 OSP 0925 



Morrison 03/10/94 

Morrison 03/10/94 

Morrison 03/28/94 

Chess 02/28/94 



Morrison 05/03/94 



93 DST 0164 
93 DST 0785 
93 DST 1474 



West 03/07/94 

Becton 03/18/94 

Nesnow 03/28/94 



9:1 NCR 60 
9:1 NCR 60 



9:5 NCR 342 



9:1 NCR 68 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



332 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CARTERET 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

92 OSP 1454 



WILLIAM D. NICELY, 
Petitioner, 



NORTH CAROLINA DEPARTMENT OF 
ENVIRONMENT, HEALTH, AND NATURAL 
RESOURCES, DIVISION OF MARINE 
FISHERD2S, 

Respondent 




This matter was heard before Brenda B. Becton, Administrative Law Judge, on September 7-8, 1993 
and on December 13, 1993 in Raleigh, North Carolina. At the conclusion of the hearing, the parties were 
afforded an opportunity to file post-hearing submissions. The record in this matter was closed on February 
18, 1994. 

APPEARANCES 

Petitioner: SCHILLER LAW OFFICES, Raleigh, North 

Carolina, Marvin Schiller appearing. 

Respondent: Robin W. Smith, Assistant Attorney General, 

North Carolina Department of Justice, Raleigh, North Carolina. 

ISSUES 

1 . Was the Petitioner terminated with just cause? 

2. Whether the termination letter lacks the requisite specificity required by North Carolina General 
Statutes §126-35. 

3. Whether, prior to the dismissal, the Petitioner was furnished with a statement in writing setting forth 
in numerical order the specific acts or omissions that are the reason for his termination. 

4. Whether the Petitioner was afforded a meaningful pre-termination hearing. 

EXHIBITS 
Petitioner's exhibits 1-21 were offered and received in evidence. 
Respondent's exhibits 1 - 27 were offered and received in evidence. 

STATUTES INVOLVED 
N.C. Gen. Stat. §§126-35 and 126-37 






333 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



CONTESTED CASE DECISIONS 



STIPULATIONS 

1. "All parties are properly before the Administrative Law Judge of the Office of Administrative 
Hearings, the Office of Administrative Hearings has jurisdiction of the parties and the subject matter, 
and jurisdiction is conferred by N.C. Gen. Stat. §126-37." 

2. "The Petitioner, Mr. William D. Nicely, was a permanent state employee within the meaning of N.C. 
Gen. Stat. §126-39 at the time of his discharge from employment from the Respondent by letter dated 
July 31, 1992." 

3. "The Petitioner's final salary with the Respondent was $2,769.25 a month." 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 

1 . At the time of his discharge, the Petitioner had been employed with the Respondent for approximately 
eighteen (18) years and eleven (11) months. 

2. At all times during the period between January 1, 1992, and July 31, 1992, the Petitioner was an 
Enforcement Officer II whose job functions included enforcing the laws of the State of North Carolina 
and the regulations of the Division of Marine Fisheries regarding fishing, patrolling the sound areas 
for violations, and assisting fishermen. 

3. Prior to the Petitioner's discharge from employment with the Respondent, the Petitioner was 
suspended without pay effective July 21, 1992. 

4. The discharge letter dated July 31, 1992 states that the reasons for the Petitioner's dismissal were: 

Defraudment of the Division of Marine Fisheries by signing contract, 
requesting payment, and being issued check for contracted services rendered 
from another government agency while receiving payment from the Division 
of Marine Fisheries for services during the same time period (June 30, 
1992). Failure to follow written and verbal instructions from your 
immediate supervisor (July 18, 1992) and failure to follow written 
instructions from the Deputy Director of Operations (July 21, 1992). 

The Defraudment Issue 

5. The Petitioner taught classes in firearms safety, firearms qualification, and cardio-pulmonary 
resuscitation in the Spring 1992 Division of Marine Fisheries In-Service Training Program at the 
Justice Academy in Salemburg, North Carolina on March 10-11 and March 31-April 1, 1992. 

6. The Spring 1992 In-Service Training Program was offered in conjunction with Sampson Community 
College ("SCC") which employed the instructors for the program. 

7. Prior to teaching in the first session of the In-Service Training Program on March 10, 1992, the 
Petitioner advised the Director of Extension Services in the Small Business Center at SCC, Mr. J.W. 
Simmons, that the Petitioner's employment as a part-time instructor by SCC would not conflict with 
his employment by the Respondent because he had adequate compensatory time available to him from 
the Division of Marine Fisheries ("DMF") to allow him to take leave from DMF for the time that he 
was scheduled to teach. 



9:5 NORTH CAROLINA REGISTER June 1, 1994 334 



CONTESTED CASE DECISIONS 



8. On March 9, 1992, the Petitioner signed two part-time instructor contracts with SCC to teach in the 
In-Service Training Program on March 10 and 11, 1992. 

9. A DMF employee is required by DMF policy to obtain a supervisor's approval before taking leave, 
including compensatory time. 

10. The Petitioner did not obtain approval from DMF to engage in secondary employment as a part-time 
instructor at SCC. 

1 1 . The Petitioner told his supervisor, Mike Hardison, the Assistant Supervisor for the Central District, 
that he intended to take compensatory leave for the time that he was scheduled to teach in the In- 
Service Training Program. At that time, Mr. Hardison indicated that he would have to talk with his 
supervisor regarding the Petitioner's taking compensatory leave to teach. 

12. On Monday, March 16, 1992, the Petitioner submitted his weekly activity report for the week of 
March 9-13, showing that he had taken leave on March 10 and 11, 1992. 

13. On Tuesday, March 17, 1992, the Central District Supervisor, Woody Hancock, following further 
discussion of the matter with Assistant Deputy Director Fentress H. Munden, notified the Petitioner 
that it had been determined that it would be inappropriate for the Petitioner to use compensatory time 
in order to be reimbursed by SCC to teach in a DMF In-Service Training Program, and therefore, 
the Petitioner was not authorized to use compensatory time for March 10-11. 

14. The Petitioner was requested to submit a revised activity report for the week of March 9-13, 1992. 
The Petitioner complied and submitted another activity report indicating that he had worked eight 
hours on the days in question. 

15. In that same meeting with Mr. Hancock on March 17, 1992, the Petitioner's request to use 
compensatory time to teach in the second session of the DMF In-Service Training Program on March 
31, 1992 and April 1, 1992 was denied. 

16. After changing his activity report as requested, the Petitioner's weekly activity reports for the weeks 
of March 7-14 and March 28-April 3, 1992 indicate work hours for DMF on March 10-11 and March 
31 -April 1, 1992. 

17. The Petitioner's monthly Record of Hours Worked and Leave Taken for the months of March and 
April, 1992 indicate that the Petitioner worked for DMF on March 10-11 and March 31-April 1, 
1992. 

18. The Petitioner had no compensatory time available to him in the months of March and April of 1992 
because DMF enforcement officers were paid at the end of February for unused compensatory time 
that had accumulated during the previous calendar year. However, on March 2, 1992, when his 
February, 1992, record of hours worked and leave taken report was prepared, he did have 16 hours 
of compensatory time available. 

19. The Petitioner signed two additional part-time instructor contracts with SCC to teach in the March 
31 and April 1, 1992 DMF In-Service Training Program. 

20. The testimony regarding the date the contracts for the March 31 and April 1, 1992 In-Service 
Training Program were signed was contradictory. The Petitioner contends that he signed two blank 
contracts when he signed the contracts for the March 10-11, 1992 training session. The Respondent 
contends that the contracts for the second training session were signed after the Petitioner had been 
told that he could not take compensatory time off to teach. 



335 9:5 NORTH CAROLINA REGISTER June 1, 1994 



CONTESTED CASE DECISIONS 



21. It is clear that the two contracts were not signed on March 31, 1992, the date that appears next to the 
Petitioner's signature, since the Petitioner was teaching in Salemburg on that date and he did not have 
any means of transporting himself to SCC to sign any contracts. There is not sufficient evidence to 
make a finding regarding when the contracts were signed. 

22. On or around June 5, 1992, a SCC employee contacted the Petitioner by telephone to remind him that 
the College needed a copy of his social security card before checks could be issued to pay the 
Petitioner for his services as a part-time instructor on March 10-11 and March 31-April 1, 1992. 

23. The Petitioner sent SCC a copy of his social security card between June 5, 1992 and June 30, 1992. 

24. The Petitioner did not inform officials at SCC that he could not accept payment from the College for 
teaching in the DMF program when he spoke with them on June 5, 1992 or when he sent them a copy 
of his social security card. 

25. SCC issued a check, No. 2019678, on June 30, 1992 to the Petitioner in payment for his services as 
a Part-time instructor on March 10-11 and March 31-April 1, 1992. 

26. The check issued to the Petitioner by SCC was mailed to the address the Petitioner provided the 
College at the time the contracts were signed. 

27. The Petitioner never advised SCC of his change of address. 

28. Although the Petitioner testified that he intended to turn the check from SCC over to DMF when he 
received it just as one would payment of jury duty, he never informed any of his supervisors that he 
expected to receive a check from SCC and never discussed with them the possibility of turning over 
any check that he might receive from SCC to DMF 

29. The Petitioner did not receive the check from SCC until after his dismissal on July 31, 1992. 

30. Petitioner never deposited or cashed the check obliquely referred to in the termination letter, but, 
rather, he personally delivered the check to Ms. Debbie Beaty, a personnel officer of the Respondent, 
during his Step III departmental appeal hearing on August 14, 1992. 

31. The check the Petitioner presented to Ms. Beaty at his Step HI grievance hearing was in an envelope 
with a change of address sticker attached to it. 

The Failure to Follow Instructions Issue 

32. On July 1, 1992, Central District Supervisor Woody Hancock issued a memorandum to all Central 
District enforcement officers directing them to work from 10:00 a.m. to 6:00 p.m. on the Saturdays 
and Sundays that they were assigned to work unless they obtained a supervisor's approval to work 
different hours. 

33. DMF enforcement officers are sworn law enforcement officers with the primary responsibility of 
enforcing state fisheries rules regulating such matters as seasons for taking specific types of fish, size 
of catch, type of fishing equipment, and fishing in polluted waters. 

34. DMF does not have a sufficient number of officers to provide twenty-four hour coverage of the North 
Carolina coast; the agency can provide approximately eight hours of coverage each day. 



9:5 NORTH CAROLINA REGISTER June 1, 1994 336 



CONTESTED CASE DECISIONS 



35. The Standard Operating Procedures of the Law Enforcement branch of the N.C. Division of Marine 
Fisheries (which are applicable to Petitioner) state, in pertinent part, as follows: 

"[OJfficers are normally expected to schedule their own work hours within 
a 40 hour week. Such hours shall be scheduled around peak fishing activity 
for the officer's area and will include day and/or night patrol by vehicle or 
boat or serving as an observer aboard aircraft." 

36. DMF supervisors are responsible for setting work schedules for the officers under their supervision 
and setting priorities for enforcement work as necessary. 

37. The Petitioner was present at a July 16, 1992 meeting of Central District enforcement officers during 
which then Acting Supervisor Michael Hardison reiterated the directive regarding weekend work 
hours set out in the Hancock memorandum of July 1, 1992. 

39. Mr. Hardison testified that he did not give Petitioner permission to work a "split shift" on July 18, 
1992. 

40. During the July 16th meeting, the Petitioner mentioned that he was receiving complaints during the 
early morning and late afternoons. The Petitioner took Mr. Hardison's response that the Petitioner 
was to "Cover your complaints but keep in touch" to mean that he had permission to work a split 
shift. 

41. On Saturday, July 18, 1992, the Petitioner reported to work at 5:00 a.m. and worked until 8:00 a.m. 
He notified the dispatcher that he would be out of service at 8:00 a.m. until 3:00 p.m. that afternoon. 

42. On Saturday, July 18, 1992, the Petitioner taught a Basic Law Enforcement Training course at 
Carteret Community College. 

43. Between 8:00 a.m. and 1:30 p.m., the Petitioner called the DMF dispatcher on an hourly basis to 
check to see if there were any complaints or other activity that he needed to respond to. 

44. The Petitioner did not leave a phone number with the dispatcher regarding where he could be reached 
at Carteret Community College because changes in the College's phone system had temporarily 
blocked incoming calls. 

45. Acting Supervisor Hardison contacted the DMF dispatcher on duty on July 18, 1992 and learned that 
the Petitioner had checked out of service from 8:00 a.m. until 3:00 p.m. 

46. Mr. Hardison went looking for the Petitioner and found him at Carteret Community College. He 
noted that the Petitioner's DMF vehicle and radio were at the Petitioner's home and the DMF 
dispatcher could not reach the Petitioner by telephone at Carteret Community College. 

47. Mr. Hardison told the Petitioner that he did not need him if he could not be trusted to work the hours 
scheduled. He instructed the Petitioner to take vacation for the remainder of the day and to not report 
to work until Tuesday, July 21, 1992. 



337 9:5 NORTH CAROLINA REGISTER June 1, 1994 



CONTESTED CASE DECISIONS 



48. On July 21, 1992, Hancock, Hardison, Central District Manager David Taylor, and Deputy Director 
Munden met with the Petitioner. In that meeting, Deputy Director Munden hand-delivered a 
memorandum notifying the Petitioner that he had been placed on investigative suspension based on 
the Petitioner's failure to comply with a supervisory directive to work from 10:00 a.m. to 6:00 p.m. 
on Saturdays and Sundays and had, instead, engaged in secondary employment during hours that he 
was scheduled to be on duty for DMF. The memorandum specifically referred to the Petitioner's 
teaching activities at Carteret Community College on July 18, 1992. In the same memorandum, 
Munden directed the Petitioner not to have any contact with DMF employees during the period of his 
suspension. 

The Dismissal 

49. On July 30, 1992, DMF Director William Hogarth and Deputy Director Munden met with the 
Petitioner to conduct a pre-dismissal conference. In that meeting, Director Hogarth asked the 
Petitioner to respond to allegations concerning: 1) unlawfully obtaining double reimbursement from 
another state agency, Sampson Community College, to teach in the Spring 1992 DMF In-Service 
Training program; 2) engaging in secondary employment with Carteret Community College on July 
18, 1992 during hours the Petitioner was scheduled to be on duty for DMF and in violation of a 
specific supervisory directive concerning weekend duty hours; 3) engaging in secondary employment 
with Carteret Community College while scheduled to be on-duty on other dates; 4) contacting DMF 
employees during the period of the Petitioner's investigatory suspension in violation of a specific 
order from Munden set out in the investigatory suspension memorandum of July 21, 1992. 

50. Director Hogarth recessed the July 30, 1992 conference with the Petitioner from approximately 2:20 
p.m. until 4:00 p.m. to allow the Petitioner to obtain class schedules and other documents that the 
Petitioner requested that he be allowed to consult in order to try to respond to questions about his 
secondary employment by Carteret Community College. 

51. In the July 30, 1992 conference with the Petitioner, Director Hogarth asked the Petitioner about the 
check from SCC. The Petitioner responded by informing Director Hogarth that he had not received 
a check from SCC and indicated that some of his mail was not being forwarded to his new address. 

52. On July 31, 1992, Director Hogarth called the Petitioner and delivered a notice of dismissal. 

53. The Petitioner received compensation from DMF for the period of time that he was placed on 
investigative suspension between July 21, 1992 and July 31, 1992. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1 . The Petitioner, William D. Nicely, was a permanent State employee at the time of his dismissal on 
July 31, 1992. Because he has alleged that the Respondent lacked just cause for his dismissal, the 
Office of Administrative Hearings has jurisdiction to hear his appeal and issue a recommendation to 
the State Personnel Commission which shall make the final decision in this matter. N.C. Gen. Stat. 
§§126-35, -37, -39 and §§150B-23, -36. 

2. At the time the Petitioner was discharged, North Carolina General Statutes section 126-35 provided, 
in pertinent part, that no permanent State employee subject to the State Personnel Act shall be 
discharged, suspended, or demoted for disciplinary reasons, except for just cause. 

3. A just cause issue presents both substantive and procedural questions. 



9:5 NORTH CAROLINA REGISTER June 1, 1994 338 



CONTESTED CASE DECISIONS 



4. Where just cause is an issue, the Respondent bears the ultimate burden of persuasion. 

5. A permanent state employee may be dismissed for inadequate performance of duties or for personal 
conduct that is detrimental to State service. Leiphart v. N.C. School of Arts . 80 N.C. App. 339, 342 
S.E.2d 914 (1986). 

6. Prior to dismissal, an employee is entitled to a meaning opportunity to respond to the charges that 
are the basis for the proposed dismissal. Bishop v. N.C. Dept. of Human Resources, O' Berry 
Center . 100 N.C. App. 175, 394 S.E.2d 702 (1990). The Petitioner's July 30, 1992 conference with 
DMF Director Hogarth and Deputy Director Munden provided the Petitioner with an adequate 
opportunity to respond to the allegations presented to him at that time. 

7. Prior to dismissal for cause related to job performance, a permanent state employee is entitled to three 
separate warnings that his/her performance is unsatisfactory. Jones v. Department of Human 
Resources , 300 N.C. 687, 268 S.E.2d 500 (1980). 

8. An employee discharged for personal misconduct is not entitled to prior progressive warnings because 
personal misconduct discipline is imposed for actions for which no reasonable person should expect 
to receive prior warning. Office of State Personnel, Personnel Manual , pp. 9-3, 9-8.3. 

9. When an employee is subjected to disciplinary action, the employee shall, before the action is taken, 
be furnished with a statement in writing setting forth in numerical order the specific acts or omissions 
that are the reasons for the disciplinary action and the employee's appeal rights. 

10. North Carolina General Statutes section 126-35 requires that the alleged acts or omissions of 
misconduct by a permanent or career state employee be described in the termination letter with 
sufficient particularity so that the discharged employee will know precisely what act or acts were the 
basis of his discharge. Leiphart y^ North Carolina School of Arts . 80 N.C. App. 339, 342 S.E. 2d 
914 (1986). 

1 1 . The Respondent's termination letter did not fulfill the specificity requirements of North Carolina 
General Statutes section 126-35. 

12. The first allegation was that the Petitioner was guilty of "[d]efraudment of the Division of Marine 
Fisheries by signing contract, requesting payment, and being issued check for contracted services 
rendered from another government agency while receiving payment from the Division of Marine 
Fisheries for services during the same time period (June 30, 1992)." Based upon this allegation, it 
appears that the Petitioner is being accused of performing all of the alleged acts on June 30, 1992. 

13. There is no evidence that the Petitioner signed a contract, requested payment, or performed any 
services for another government agency on June 30, 1992. There is evidence that SCC issued the 
Petitioner a check on June 30, 1992. But there is no evidence that the check was issued for services 
rendered to SCC on June 30, 1992 while the Petitioner was receiving payment from the DMF during 
the same time period. 

14. Regarding the issue of defraudment, the termination letter lacks the requisite specificity in that the 
evidence does not support any allegation that the acts alleged occurred on June 30, 1992. 

15. Furthermore, if one assumes that the gist of the Respondent's complaint is that the Petitioner was 
defrauding the State by arranging to receive double payment for the same duties, it would be 
necessary for the Respondent to prove that the Petitioner actually benefited monetarily. The 
Respondent, however, terminated the Petitioner's employment before he ever received the check 
which represented payment by SCC for the courses the Petitioner taught during the Respondent's 
Spring In-Service Training. The Petitioner testified that he intended to turn the check over to the 
Respondent, as one would do with jury duty pay, when he received it. The Respondent did not offer 



339 9:5 NORTH CAROLINA REGISTER June 1, 1994 



CONTESTED CASE DECISIONS 



any evidence that refutes the Petitioner's contention other than the feet that the Petitioner never 
informed the Respondent of his intention to turn the check over to it even when he informed Director 
Hogarth that he had not received the check. 

16. An act of defraudment essentially involves depriving a person of property by deceit or artifice. 
Black's Law Dictionary , 381 (5th ed. 1979). 

17. The acts of signing a contract, requesting payment and being issued a check do not, by themselves, 
either individually or collectively constitute an act or acts of fraud since none of those acts either 
individually or collectively necessarily result in a person being deprived of property by deceit or 
artifice. 

18. The defraudment alleged in the discharge letter states that the defraudment occurred on "June 30, 
1992". 

19. No defraudment of Respondent by Petitioner occurred on June 30, 1992. 

20. The second allegation presumably refers to whether Petitioner could legitimately work a "split shift" 
on July 18, 1992. 

21. Even if the second allegation in the termination letter were, arguendo, sufficiently precise to meet the 
specificity requirements of North Carolina General Statutes section 126-35, the second allegation 
(concerning the alleged failure to follow written and verbal instructions from Petitioner's immediate 
supervisor, Mr. Hardison, on July 18, 1992) is not a sufficient basis to dismiss a permanent or career 
state employee for just cause on the basis of personal misconduct. 

22. Petitioner testified that his working a "split shift" (which meant working the tides early morning and 
late afternoon) as he deemed appropriate had, he thought, been verbally approved by Mr. Hardison, 
acting supervisor, on July 16, 1992. 

23. Mr. Hardison testified that he did not give Petitioner permission to work a "split shift" on July 18, 
1992. The words spoken by Mr. Hardison could, however, reasonably have been interpreted to grant 
the Petitioner permission to work whatever hours were necessary to cover his complaints. That could 
have meant working from 10:00 a.m. until 6:00 p.m. plus additional overtime hours to cover the 
early morning complaints or it could have meant working a "split shift" to cover the complaints. 

24. Confusion, in retrospect, about what the Petitioner was authorized to do, is not insubordination and 
does not constitute the type of conduct that would justify a dismissal without prior warning. 

25. Respondent did not have just cause to dismiss Petitioner for the second allegation in the termination 
letter even if the second allegation had met the specificity requirement of North Carolina General 
Statutes section 126-35. 

26. The third allegation presumably refers to a directive issued from Mr. Fentress H. Munden, Deputy 
Director of the Division of Marine Fisheries, dated July 21, 1992 to Petitioner which places Petitioner 
under investigatory suspension and instructs Petitioner, among other things, not to "have any 
conversations with any other employees outside of [his] chain of command in this Division regarding 
this matter." 

27. Even if the third allegation of misconduct in the termination letter were sufficiently precise to meet 
the specificity requirements of North Carolina General Statutes section 126-35, the third allegation 
(even if proven true) could not be a sufficient basis for a just cause dismissal of a permanent or career 
state employee. An employee who is under investigatory suspension is entitled to gather whatever 
legitimate evidence he can gather in his defense during a period of suspension when the agency is 
itself gathering evidence regarding the suspension. A delay in gathering evidence can result in the 



9:5 NORTH CAROLINA REGISTER June 1, 1994 340 



CONTESTED CASE DECISIONS 



evidence being lost, dissipated or evaporated with the passage of time blunting an otherwise sharp 
memory into a stale memory. Elementary due process requires a level playing field. 

28. Respondent tailed to meet its burden of proving it terminated Petitioner for just cause within the 
meaning of the State Personnel Act. 

29. The Petitioner is entitled to reinstatement, backpay from the date of his suspension without pay, 
including all legislative pay increases, minus any pay from other employment he received during the 
period of his suspension and discharge from the Respondent's employ, all attendant benefits of 
continuous state employment and attorneys fees. 

RECOMMENDED DECISION 

The State Personnel Commission will make the Final Decision in this contested case. It is 
recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and 
rule that the Petitioner is entitled to be reinstated with full back pay and all attendant benefits of continuous 
employment with the State of North Carolina from the date of his termination until the date of his 
reinstatement. Attorney fees and costs should also be awarded to the Petitioner. In addition, his personnel 
file should be appropriately rectified so as to reflect that he was discharged without substantive just cause. 
Any and all documents in his personnel file which indicate to any degree a contrary fact should be removed 
Any pay which Petitioner received during the period of his suspension and discharge should be deducted from 
his backpay award. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 

NOTICE 

Before the State Personnel Commission makes the FINAL DECISION, it is required by North 
Carolina General Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this 
RECOMMENDED DECISION, and to present written arguments to those in the agency who will make the 
final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 

This the 4th day of May, 1994. 



Brenda B. Becton 
Administrative Law Judge 



341 9:5 NORTH CAROLINA REGISTER June 1, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 
COUNTY OF ORANGE 93 OSP 0925 



ERIC W. BROWNING, 
Petitioner, 



UNC-CHAPEL HILL, 
Respondent 



RECOMMENDED DECISION 



This matter came on for hearing before Fred G. Morrison Jr., Senior Administrative Law Judge, 
Office of Administrative Hearings, on January 27 and 28, 1994, in Raleigh, North Carolina. Following the 
hearing, the parties submitted proposed findings of fact and conclusions of law. A transcript of the hearing 
was filed on April 15, 1994. 

APPEARANCES 

FOR THE PETITIONER: Attorney Alan McSurely 

FOR THE RESPONDENT: Assistant Attorney General David Parker 

1 . Did Respondent discriminate against Petitioner because of his race when it discharged him? 

2. Did Respondent retaliate against Petitioner when it discharged him, because he had protested alleged 
racial discrimination involving promotional and training opportunities, failure to give him written 
notice as to why he was denied certain promotions and training opportunities, and failure to provide 
him with adequate and accurate information about training opportunities? 

3. Did Respondent have just cause, procedurally and substantively, to terminate Petitioner's 
employment? 

OPINION OF THE ADMINISTRATIVE LAW JUDGE 

Based on competent evidence admitted at the hearing, the Administrative Law Judge makes the 
following: 

FINDINGS OF FACT 

1. Mr. Eric Wayne Browning, Petitioner, was employed by Respondent at the Carolina Inn making 
salads and desserts on February 8, 1989, as a Food Service Assistant 1; on May 8, 1989, he 
transferred to a Housekeeper position, Pay Grade 50, in the Physical Plant Department where he 
worked, with no grade increase, until he was dismissed, effective May 7, 1993. Petitioner has 
appealed this dismissal. 

2. Petitioner is a Black male, married, and the father of five young children. He graduated from high 
school and attended Johnson C. Smith University for two years. 



9:5 NORTH CAROLINA REGISTER June 1, 1994 342 



CONTESTED CASE DECISIONS 



3. His working hours with Respondent were from 3:50 AM until 11:50 AM with two short breaks. 
Since his hourly pay with Respondent (about $6.00) was not sufficient to meet family needs, 
Petitioner worked a second job at a local restaurant. 

4. During his exactly four years as a Housekeeper, Petitioner applied for thirteen promotions and many 
training opportunities. He was not given any promotions and only attended one training program 
given to all Housekeepers. 

5. Respondent did not always follow its policy of notifying applicants such as Petitioner of promotional 
decisions with reasons. This was very frustrating to Petitioner in his efforts to better himself. 

6. During his four years as a Housekeeper, Petitioner did a good job, received positive evaluations, and 
was encouraged to seek promotions. 

7. Petitioner had attempted for 11/2 years to enroll in a Supervisory Resources training course with the 
hope that this would enable him to get a promotion. 

8. Respondent frustrated Petitioner in this training quest by means of conflicting information, mis- 
information, and lack of substantive communication. 

9. During his employment, Petitioner was actively involved with about 300 other Housekeepers in 
seeking better pay, supervision, training and promotional opportunities. Rev. Jesse Jackson visited 
Chapel Hill in early 1993 to promote their efforts. Petitioner and others appeared with Rev. Jackson 
in a news photograph following this visit. 

10. In the fall of 1992, Petitioner filed a grievance concerning not being interviewed for a position he 
applied for. A pre-hearing conference on this matter was scheduled for April 28, 1993, at 2:00 PM, 
before Professor Robert Joyce of the Institute of Government. Housekeeping Superintendent Hardy 
White, Black male, was management's representative for this conference. 

1 1 . William Burston, Black male, served as Respondent's Training Manager. He had attempted to get 
Petitioner admitted to the Supervisory Resources training course, but Hardy White had decided that 
a preparatory course for all housekeepers was a pre-requisite. This was a new requirement added by 
White after Petitioner had been seeking admission for more than a year. 

12. Petitioner had successfully grieved an oral warning which Respondent failed to remove from his file. 
White had stated to Petitioner's supervisor that he was going to transfer Petitioner following this 
grievance. 

13. Petitioner decided to grieve White's denial of his training request. He called Gwen Gardner at 
Counseling and went to her office for forms on April 28, 1993, around 8:30 AM. 

14. While at Counseling, Petitioner talked with Karen Boulding about the training request. Ms. Boulding 
called Mr. Burston who told her that Mr. White would not approve this training until the general 
course was completed. He had recently talked with Petitioner. 

15. Hearing this conversation, Petitioner lost his temper. He stormed away, but returned shortly. He 
called White a bastard, said White made him sick, and stated "I ought to get my gun and kill the son- 
of-a-bitch." Petitioner had no gun with him at this time. 



343 9:5 NORTH CAROLINA REGISTER June 1, 1994 



CONTESTED CASE DECISIONS 



16. Petitioner proceeded to Gwen Gardner's office and continued his tirade before her. While speaking 
derogatorily and vociferously about the university, Petitioner was waving his hands in her face. He 
seemed to her to be speaking to someone else. While he did not threaten Ms. Gardner, his unusual 
behavior did frighten her somewhat. Petitioner threw his notebook and papers against the wall and 
left. Ms. Gardner called the campus police. 

17. Ms. Boulding called Mr. Burston who came to the offices and found Petitioner weeping and 
complaining about the denial of his training request. Mr. Burston succeeded in calming Petitioner 
down. 

18. The campus police arrived after Petitioner had left the scene. They investigated the matter and got 
written statements from Boulding, Gardner and Burston. No criminal charges have been filed in this 
matter. 

19. The Petitioner attended the pre-hearing conference before Professor Joyce at 2:00 PM on this same 
day (April 28). He had a very calm and pleasant demeanor. He related very well with Hardy White 
who also attended. He apologized for the statements he had made that morning to Boulding and 
Gardner. 

20. Professor Joyce agreed to consolidate the Petitioner's grievance about being denied training with the 
one pending. The Petitioner filed this second grievance on the morning of April 29, 1993. 

21. After receiving and reviewing the police reports concerning the April 28th altercation, Respondent's 
Director of Physical Plant, Herbert Paul, had Petitioner suspended effective April 30, 1993. A pre- 
dismissal conference was conducted on May 3rd following which Petitioner was notified by letter that 
his employment was terminated effective May 7th because of his personal conduct before Ms. 
Gardner and Ms. Boulding on April 28th. 

22. Paul is White. Gardner, Boulding, White and Burston are Black. Paul testified that Petitioner was 
not fired because of his race or in retaliation for protesting discriminatory actions. Ms. Boulding is 
trained in working with emotionally disturbed people and Gardner is licensed to practice law. 

23. Following the dismissal of Petitioner, Ms. Boulding's superior contacted Professor Joyce to inform 
him of the firing and offer his opinion that Petitioner's two pending grievances were mooted. Mr. 
Maynard was to check with Respondent's counsel and get back to Joyce. There were no written 
communications from counsel to Maynard regarding these matters. Professor Joyce was not on the 
panel hearing Petitioner's grievance concerning dismissal. 

Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1 . Mr. Eric W. Browning, Petitioner, was a permanent State employee with the Respondent at the time 
of his being dismissed. Because Petitioner has alleged lack of just cause, illegal discrimination and 
retaliation because of his race and protests as the basis for his dismissal, the Office of Administrative 
Hearings has jurisdiction to hear the matter and submit a recommendation to the State Personnel 
Commission which shall make a final decision in the matter. North Carolina General Statutes 126-16, 
126-35, 126-36, 126-37, 126-39 and 150B-23 et seg. 

2. Where illegal discrimination or retaliation is an issue, Petitioner bears the ultimate burden of proof 
and must establish a prima facie case of discrimination by providing sufficient facts in order to raise 
an inference of discrimination. The Petitioner has not established a prima facie case of discrimination 
or retaliation because of his race. 



9:5 NORTH CAROLINA REGISTER June 1, 1994 344 



CONTESTED CASE DECISIONS 



3 . While Respondent has shown just cause to discipline Petitioner, it is concluded that fair administering 

of discipline includes mitigating the treatment in this case because of Petitioner's good work record 
as well as the Respondent's actions which contributed to his frustrations and ventilation of same. 
Furthermore, it was not fair to treat Petitioner's pending grievances as moot since they were part of 
his frustrations. Fairness would have been to let Professor Joyce hear all three combined. Under 25 
NCAC IB .0413 it is provided that "the State Personnel Commission will weigh all relevant factors 
and circumstances in employee grievance appeals, including factors of mitigation and justification, 
in making a determination of whether disciplinary action was imposed for just cause. " Weighing and 
balancing the equities in this case leads me to the conclusion that a less severe sanction was 
warranted. This is not to excuse Petitioner's diatribe, but is an empathetic way to deal with the plight 
of one of the lowest paid state employees who lost his temper during a stressful period. UNC policy 
also allows such mitigation. 

Based on the foregoing Findings of Fact and Conclusions, the Administrative Law Judge makes the 
following: 

RECOMMENDED DECISION 

That the Respondent's decision be reversed and the Petitioner be reinstated with attorney's fees, and 
a final written warning for improper personal conduct. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the State Personnel Commission. 

This the 3rd day of May, 1994. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



345 9:5 NORTH CAROLINA REGISTER June 1, 1994 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneeis 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



9:5 



NORTH CAROLINA REGISTER 



June 1, 1994 



346 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 , 3 - May 

227 - 305 4 - May 

306 - 348 5 - June 



Unless otherwise identified, page references in this Index are to proposed rules. 



AGRICULTURE 

Plant Industry, 127 

COMMERCE 

Energy Division, 4 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, Division of, 243 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

DEM/ Air Quality, 80 

Departmental Rules, 254 

Environmental Management, 81, 258 

Health Services, 323 

NPDES Permit, 3, 232 

Solid Waste Management, 171 

Water Resources, 165, 255 

Wildlife Resources Commission, 38, 42, 84 

Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2, 312 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123, 227, 306 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Facility Services, 4, 128 

Medical Assistance, 318 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313 

Social Services, 136 

INDEPENDENT AGENCDZS 

State Health Plan Purchasing Alliance Board, 99 



347 9:5 NORTH CAROLINA REGISTER June 1, 1994 



CUMULATIVE INDEX 



INSURANCE 

Multiple Employer Welfare Arrangements, 76 
Special Services Division, 76 

JUSTICE 

Criminal Justice Education and Training Standards Commission, 149 
State Bureau of Investigation, 234 

LABOR 

Mine and Quarry Division, 239 
OSHA, 77, 160 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Cosmetic Art Examiners, 280 

Landscape Architects, Board of, 95 

Medical Examiners, 192 

Nursing, Board of, 45 

Optometry, Board of Examiners, 194 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281 

TRANSPORTATION 

Highways, Division of, 85 

Motor Vehicles, Division of, 89, 276 



9:5 NORTH CAROLINA REGISTER June 1, 1994 348 



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